 Good morning, everyone. This is a meeting of the, well, it's Thursday, January 21st, 8.30, the meeting of the Senate Natural Resources and Energy Committee. And we are joined this morning by our colleagues from the House Natural Resource Fish and Wildlife Committee. The, we'll be spending the morning looking at executive order number 0-2-2-1, a reorganization of the Natural Resources Board. And we're gonna be taking testimony from a variety of people getting help from legal counsel, as well as hearing from some people in the field, district commissioners, and others, as well as the administration. The administration had some time constraints in terms of when they could join us. So they'll be joining us in the middle of the morning. It might be more ideal if they've been able to go early on to sort of pitch the EO to us, but we'll work with the timing we have, even if it's a little awkward. Just for remind everyone of the basics. So if everyone could mute their speakers, if you're not the speaker at that moment, and we have a pretty good sized crew, so I'll call on people. I try to scan the screen for hands up. I think everyone knows that down under the, how to put a yellow hand or a blue hand seems to vary by system sometimes. But if I don't recognize you, please just, turn on your speaker and sing out, because sometimes I do miss the hand. So we have a lot of testimony to cover this morning in the next three hours. We'll be going roughly an hour and taking a 10 minute break and repeating that through the morning, aiming to adjourn by 11.50 so that no one is jammed into any kind of noontime commitment. We're gonna, I would ask people because we have so many of us and so many witnesses to talk with, to not enter sort of full discussion mode where we ask lots of questions, but at the same so that we can make sure that we get through everyone's presentation. At the same time, if there's something that's unclear, please do go ahead and ask because just like being in school, when one person asks a question, there's usually other people in the classroom who would have liked to have heard that, they needed that same question asked on their behalf as well. So before we go to our first witnesses, I just wanted to ask Chair Sheldon if she had anything she wanted to offer up. Not at this time. That was a good intro and our committee did get a look at the executive order yesterday afternoon, but I don't think it will hurt us to hear some things again. So thank you for having us in. Great. And just a little bit more. Well, I'm gonna, you just left the screen, but good morning former representative Baser from my neighbor here in Bristol and a district commissioner. Sorry, once you left your chair, let's say hello. Four, good to see you again. In terms of framing what we're gonna be looking at. So we're really looking at the EO from two different perspectives. One is the content. So what does the EO propose to do and why that gets into an examination of its merits? Just as an idea, a good idea can come from anywhere. So is this a good idea? But there's also a process element to it. And that is, does this EO conform to the statutory process that we all legislator, legislators and the executive branch alike are obligated to follow? And as we address these two aspects, we're gonna start with our legal team, Mr. Chakowsky, Mr. Martland and Ms. Aragali to look at both content and process. And then we'll move on to witnesses who are here primarily to talk about content, I think today. But so with all that teed up, I'd like to turn to Mr. Chakowsky. And I figure that you, Mr. Aragali and Mr. Martland will switch back and forth as you need to. We can leave this pretty fluid as to how you help one another cover all the territory we need to cover this morning. So with that. Sure, although would it be, so Alun Chakowsky, I was a legislative counsel, would it be most helpful to have Luke and Amarin start with the legal framework or would you like me to talk about the details of the texts of the EO's policy proposal? I thought if we would just start with the, to make sure everyone knows the content side first before we get into the legal intricacies of how it works or doesn't work. You know that kind of thing. Thank you. All right, so good morning. This is, can you see my shared screen of the PowerPoint? Yes, thank you. So this PowerPoint is similar, almost identical to the one I gave yesterday in House Natural Resources. There was one typo that I will point out as we go. So executive order two dash 21, a reorganization of the Natural Resources Board was signed on a week ago, January 14th. It is the authority for this. My colleagues will talk about is under 3,000, three VSA 2002 and that sets a 90 day parameter for the legislature to respond. And we'll talk about that more momentarily, but the structure of the EO is similar to how your resolutions look. It starts with a few whereas clauses and those clauses set out some of the justification, some of the history of the Act 250 program and a little bit of the policy details, but then there is a now therefore section which lists the details of the proposal. So there are nine now therefore paragraphs. So now therefore the governor proposes to reorganize the Natural Resources Board and the district commissions as follows. Starting on July 1, 2021, the Natural Resources Board changes from five members to three full-time professional members. I did also under my name for today on your website, this presentation appears, but also the chart that Senator Westman requested, detailing sort of a visual side by side. That is up there too. And we can talk about that more later, but to start the current Natural Resources Board has a full-time chair and four other members that receive per diem and necessary expenses. The chair of the current Natural Resources Board serves at the pleasure of the governor while the other four members are removable for cause only. Paragraph two abolishes the current board and transfers its duties and authority to the new board. Paragraph three, the new chair and two members shall be appointed by the governor with the advice and consent of the Senate. They shall serve at the pleasure of the governor and have six-year terms. They shall have staggered initial terms and be full-time exempt employees. So this is one of the major changes. We're going from five members to three members. Those members will be full-time professional employees, but they will all three all serve at the pleasure of the governor as opposed to the current structure which has removable for cause only. Also in paragraph three, when the board takes up an application to district commissioners from the district where the project is located, join the board as voting members. So the chair of that district commission shall select which members participate. So that means it is a board of five people reviewing an application, but each application will have a slightly different makeup of a board reviewing it. Paragraph four, the district commissioners authority to decide whether an application is a major or minor application is transferred to the board. No input from the district commissions. Paragraph five, the district commission's authority to decide whether to issue an administrative amendment is transferred to the board. No input from the district commissions. Paragraph six, the district commission's authority over major applications and minor applications with a hearing that is also transferred to the board. And we'll come back to that on the next slide quickly. Paragraph seven, the statute's rules, policies and procedures relating to applications shall be transferred to the new board. Paragraph eight, an applicant may seek reconsideration of a jurisdictional opinion that has been issued by a district coordinator from the board. So I wanna point out to the members of the house, yesterday I sort of mischaracterized this process a little bit. So a person may request a jurisdictional opinion currently and that goes to the district coordinator. Once that has been issued, they may request, the person requesting may request a reconsideration and that is currently done by the district coordinator also. Someone can also appeal the JO directly to the court. So the reconsideration is an optional step but under this policy proposal in the EO, reconsideration is now done by the board. And then finally in paragraph nine, applications made before July one remain with the district commission. So this is a pretty short executive order. It's only, this section, these nine paragraphs is only about a page and a half but there is a lot of policies sort of change happening here. So then I wanted to mention, in reading the text of the executive order, it appeared to me at least initially that all of the district commission's authority was being transferred to the board but then in rereading one of the whereas clauses states that major applications will be sent to the board and then further in the press release associated with the executive order there, it states that minor applications will remain with the district commissions. So this being a short executive order, a lot of the details are not included but I think that what's happening here is because the new board is being vested with all of this authority, they will have the authority to delegate some of that authority back to the district commission. So there are some details that may need to be filled in and should this policy, should this executive order proposal go into effect, there will probably need to be legislation conforming the statutes, amending all of this in statute. So some of the details can be discussed then. And also, so this proposal should sound a little bit familiar although your committee did not review it last year or the Senate committee did not review it last year, it was a very similar proposal was made to House Natural Resources last year, last January it was proposed by the administration and VNRC, the House Committee worked on that proposal for about six weeks and did include it in the version of H926 that the committee voted out last February. As we've talked about briefly on Friday after H926 left House Natural Resources, it went to House Ways and Means but also House Appropriations and the proposal for the new board was removed by House Appropriations in its strike all amendment. And then finally just as a reminder, H926 was passed, you recall we spent a lot of time working on that and the governor vetoed H926 on October 5th, 2020 and issued executive order 0420. In his veto message of H926, he stated that he was issuing EO420 to address interim trail policy, recreational trail policy and he adopted some of the recreational trail policy that was in H926. So it's worth pointing out this is the second time in three months that the governor has issued an executive order proposing to adopt some of the Act 250 policy that your committee worked on last year. And that is all I have in this slide. So that's the overview of the policy proposal in the text of the executive order. Okay, are you able to put up your side-by-side so we could take a look at that together as well? Sure. Can I just... This is, yeah, Senator Westman. Can I just butt in and say thank you to her for doing that? You are welcome. Can you see it on the screen? Let me see if we can make it a little bit bigger. So one of the challenges I've already sort of mentioned is that this is an executive order that contains a lot of information in a short document. So I think I've captured all of it in this chart, but this chart does not describe the Act 250 program and process completely. I tried to sort of stick to the things that are being discussed in the executive order. So this should all largely be redundant to what I just said. It starts with the natural resources board. The left or middle column is the existing structure and the far right column has what is contained in the executive orders proposal. So current structure, five members, one full-time chair, four members who receive per diem and expenses, appointed by the governor with advice and consent to the Senate. The EO proposes three full-time exempt employee members all appointed by the governor with the advice and consent of the Senate. All of those, again, being employees that serve the pleasure of the governor, whereas the current structure has the chair serving at the pleasure of the governor with the other four members being removable for cause only. Another sort of small detail is that currently in the, in 6021 the statute says, in making these appointments, the governor and the Senate shall give consideration to experience expertise or skills relating to the environment or land use. In the executive order, in addition to those skills in environment or land use, it also adds geographic, gender, ethnic, or racial diversity. And that actually was a phrase that was added in H926. So that is language that should seem familiar. Okay. I didn't ask you this question before today, but do you know anything about the history of, can you say a little bit about what serves at the pleasure of versus removable for cause? I don't know if anyone has been removed for cause. They're all, so that's one question. And the other one that goes with it is, are all the appointments made by the governor, whenever a seat opens, whether it's the district commission level or on the board level, are all the appointments made by the governor? Yes. So at least as it is stated in statute, I was gonna talk about the district commissions next, but all of them are currently appointed by the governor. The phrase removable for cause only is, I am not an expert on the nuances of employment law, but one of the differences is there is a, at least an appearance of being insulated, you know, from personal or political pressure. So that is a difference serving at removal, serving at the pleasure of the governor allows the governor to remove that person at any time from the office, I believe without having to state a reason, as opposed to cause needs to have a clear, reason associated with it. So I can look into more of that. I can do some more research on that for you also. Okay, thanks. Yeah, sorry, I interrupted with that question, so. So then as far as the district commissions go, there are nine environmental district commissions established in statute. It does not appear that any of the structures are changing, that at least is not mentioned in the executive order. So it's unclear, but they're not referenced. Each consists of a chair and two members, which are appointed by the governor. The chair serves for a four-year term and serves at the pleasure of the governor. The other two district commissioners have two-year terms and are removable for cause only. So none of this is discussed directly in the EO, so I sort of assume that it is unchanged. Next, jurisdictional opinions. I did just touch on that in the slideshow. So a district coordinator issues a district, just jurisdictional opinion when someone asks for one. The applicant or the requester can request a reconsideration of the JO once it's been issued and the currently the district coordinator does that. They also could appeal directly to the environmental court. As I mentioned, the executive order is proposing to change who does the reconsideration, that will now be done by the board if requested. So then the permit application process is changing under the EO as proposed. So currently a permit application is submitted to a district commission where the project is located. The text of the EO states that the permit will now be submitted, a permit application will be submitted to the new board. Currently, the district commission determines if that application is a major application, a minor application, or would fall as a administrative amendment, which is a much shorter, quicker process. Under the new proposal in the executive order, the new board determines if it's a major, minor, or administrative amendment. And then the district commission from the district where the project is located reviews that application and decides whether to issue a permit. They're also the ones that conduct any hearings that would be needed on that permit application. Under the executive order, the new board plus two district commissioners from the district where the project is located review major applications and decide whether to issue a permit. The chair of the district commission selects which two district commissioners will join the board for each application. And then finally, appeals are not mentioned in the executive order, but currently permit decisions are appealable to the environmental division of the superior court. Subsequent appeals are made to the Supreme Court. So it does not appear that that is changing under the EO, but it is not discussed. Great, thank you very much. And I know that this is not your proposal. So it's a little awkward to ask you to explain someone else's proposal, especially when the language of the EO is a bit terse. So we'll have the administration into digging into that further. Any questions in the room for Mr. Chakowsky before we switch over and start looking at the legal side with Mr. Martland and Ms. Aberdeely? Okay, so thank you. And let's move on. And I don't know who of council is gonna go next, Mr. Martland, are you walking us through? I'll begin that and thank you very much. And good morning, everyone. Luke Martland, director of legislative council and chief counsel to the general assembly. And I'm joined not only by Ellen, who you've heard from, but also my colleague, Ameron. And we'll be discussing the process. And for those of you on the house committee, you've heard this testimony yesterday. I still will run through it. So the Senate committee can hear the same information, but we'll try to be quick. As the chair began his introductory remarks, we welcome questions. I'll leave that up to the chair to recognize anyone who raises their hand. But if anything I say or we say is unclear, please ask us a question. So as Ellen alluded to, there's a process for the house and the Senate to consider an executive order that reorganizes the functions or duties of the executive branch. And that is set forth in title three, chapter 41. Pursuant to that chapter, the governor may propose changes in the organization of the executive branch or in the assignment of functions among its units that he or she considers necessary for efficient administration. And the procedure to follow is set forth in three VSA 2002. That statute states that the executive order proposing such a reorganization must be submitted to both the house and the Senate on or before January 15th of the year. The proposed reorganization will then become effective, quote, unless disapproved by resolution, by either house of the general assembly within 90 days or before final adjournment of that annual session, whichever comes first, end quote. The remaining sections of this chapter, three VSA 2003 through 2007 concern other issues. For example, appropriations, how money follows any reorganization, terms of appointees and other issues that I don't think are relevant to the committee's discussion today, but we could always answer questions if you think that information is relevant. So therefore, in sum, the process set forth in statute is quite straightforward. Number one, the governor must issue the executive order before January 15th, which was done in this case. Number two, the executive order may propose reorganization to executive branch agencies or departments. Number three, if either the house or the Senate, excuse me, passes a resolution within 90 days or before adjournment, disapproving the executive order, the reorganization does not go into effect. And number four, if neither the house or Senate does so, then the executive order will go into effect and the reorganization will take place. Now, in the memo that all of you have been provided, we give a little context. This statute has been in effect for approximately 50 years. It's been used multiple times by multiple administrations. It's been used previously by Governor Scott and we summarize that in the paragraph on page two. I won't go into that today unless there's a question, but it is a statute that has been used multiple times. And some of those executive orders have gone into effect and others have been disapproved by a resolution of either the house or the Senate. I would pause here for a moment to see if there's any questions. Senator McDonald? For those listening in from the public to put it into more less legal terms, if you were in a used car lot, you might say take it or leave it. And if this were in the legislature or a committee, the chair would say hearing no objection. Is that basically what we have before us, something that we could either take or leave or takes place unless we object? Well, let me break that down a little bit because you raise a question that I think hits on another question we heard yesterday. So first of all, is it take it or leave it in the sense that you can amend the EO? And our answer is we believe not. The EO as it is, is take it or leave it. You can amend it or change it. But if you like what the EO does, you do nothing. And if the house does nothing and the Senate does nothing, it goes into effect. If you don't like what the EO does for whatever reason, then one body would pass a resolution disapproving it and it would not go into effect. Did that answer your question, Senator? I believe he muted. He looks contented. Okay. Yes, it is my question. Either the house or the Senate can take it or leave it. Thank you. Thank you. So the only other point that I would make, and this is on page two and three of the memo, is that there is an inaccuracy in the language of both executive orders. They state that both houses must pass a resolution disapproving the EO that is incorrect under the clear terms of the statute that I read to you a few moments ago. It's either body. So either the house or the Senate passes a resolution disapproving the EO. It does not go into effect. And I'd ask Amron if she has any comments, but otherwise that concludes my summary of the procedure. I do not. Thank you. Thank you. I have a quick question, Mr. Marlion. The previous EOs issued by this administration did they include the language that asserted that both bodies needed to object in order to disapprove of the EO? No, they did not. So both EOs before the General Assembly currently have identical language. The executive orders from 2017 also had a language that was identical between those three EOs, but it was different. And what it merely stated was that the EOs in 2017 would go into effect unless disapproved by the General Assembly. And then there was a citation to the statute. So that phrasing we think is substantially accurate. The phrasing in the current EOs is not accurate. Thank you. And are you or Ms. Albert Jaley going to speak about the extent of change contemplated by this EO versus the intent of 3VSA 2001 and 2002? I don't know if that's our role. I think actually probably the person who could give you most information about that would be Ellen. If you're asking what the line is between reorganization and substantive policy changes, I think that's a little bit of a gray area because if you're making organizational changes that could indeed lead to substantive changes. So I don't think legally we can tell you exactly where that line is, but I think as Ellen has very carefully put in front of you, the impact of these organizational changes is broad and it does hit a number of different areas. Thank you. Any questions for Mr. Martland or Ms. Albert Jaley? Sarah McCormick. Thanks. I understand the 90-day deadline for the legislature to act or not, but what is the purpose of the deadline for the governor to issue the executive order in the first place? I believe you said January 15th. Yes, that's accurate. What is the purpose of that? I can't comment on the purpose. That's in statute. The statute was passed in 1970, so I'm sorry, I can't tell you the purpose for that, but that is very clearly set forth in the statute. Let me rephrase the question then. What is the function of that? What impact does that have? I think I'll give you the same answer. The impact is if it's done on January 16th, it's too late. If it's done on January 14th, it's in time and that's what happened in this case. No, I understand that, okay. Yeah. You know, this is outside your bailiwick, and I get you. Yes. Okay, Representative Dolan. Thank you and good morning. My question is about precedent. Say that this executive order goes into law either through lack of action on the executive order. How does it affect that inconsistency, that inaccuracy that you pointed out? Does it become precedent for future executive orders? Or as you had pointed out, we would need to respond anyway to change in statute to support the executive order. I presume it would, it may trigger a relook at that particular language. So as to your question about precedent, I can't comment from the executive branch's perspective. So maybe they would think that it would establish precedent for future EOs. As far as interpreting the statute, I don't think it would change what the statute says. And if this statute was ever litigated, I think a court would look at the clear wording of the statute and perhaps any prior cases. And I cite in the memo, the only case we're aware of that interprets a statute. So as far as a court would go, I don't think the EO would have much presidential value. Their argument, or I shouldn't say their argument, their language in EO as I indicate in the memo in a footnote is sort of having it more than one way simultaneously. And it seems to be an effort to raise the bar or seem to raise the bar for you in the general assembly and what you must do to disapprove it. So it's not only inaccurate, I think as your attorney, as Ellen and myself and Amron as your attorneys, we don't think you should go along with this incorrect interpretation of law. And that's separate from whether you allow this to go into effect or not. It might be something you consider where you respond to this inaccurate interpretation of the statute. But I don't think it has much presidential value for the future. Your other question was about amending the statute. Of course you could do that or amending other statutes to comply with the executive order. We think you should do that if the executive order goes into effect. That is what you've done in the past with executive orders. And we think that's important to make sure that statutes comply with any organizational changes. Thank you. Senator Westman. So because I heard the 15th deadline, does that mean that if the governor's office wanted to reissue the order that that's impossible until next year? I believe so. I mean, I think they've submitted their two executive orders. That's it. I don't think they can come out with a new one or rework this and reissue it. I don't believe they can. So there's no opera. It's either up or down for us. You've raised the question of whether or not and this is not the best terminology, but from a layperson, whether this is legal that they did this anyways. So it's up or down for us and there's no opportunity to negotiate with them to come back with anything. As far as approving the executive order, I believe it is up or down. You either let it go into effect or you disapprove it. And as I said earlier, I don't think you can amend it. I don't think they can come back with a new and modified executive order. Of course, it could be the beginning of a discussion that ultimately results in statutory change, which has happened in the past. I get that, but what I'm just trying to figure out is in this realm, in this avenue that has been taken, it's either accept or reject. And in this process, other than going through a statutory change is basically in your opinion, a dead alley. I'm sorry, I don't know what you mean by dead alley. They can't reissue. We couldn't negotiate for them to, it would have to be through statute. Yes, that is my point of view, yes. Okay. Senator Campion. Thanks, Mr. Chair. I'm sorry, I may have missed this earlier, Mr. Marlin. When you were speaking with Senator Westman, did you say that you believe there's a legal issue with them having even put the EO forward? No. And sorry if I was unclear. They met the deadline in statute. So they're submitting these EOs to you was proper. It complied with the statutory deadline. No problem there. The only legal issue we raised was their interpretation of whether both bodies need to disapprove it or not. Thank you so much. Thank you. Yeah, that was helpful. Yeah. Representative Lefebvre. Thank you, Mr. Chair. If an executive order is rejected by the legislature, can it be brought back in the form of a bill? Yes, I mean, obviously it'd be a different vehicle, but yes, the same idea could be advanced pursuant to a bill. Thank you. Okay, I don't see any more question. Yes, Senator McDonald. If I may, often there are times when there's a general consensus about what ought to happen. The legislators of both parties and various committees agree. People are in accord and in those cases in order to save time and energy, governors are perhaps even urged by all the ones I just mentioned to put through a fourth and executive order. And all sorts of time and effort is removed and everybody leaves happy. So I guess the question before both the House and the Senate is whether or not this is one of those times. Thank you. Any one else have a question for council before we change gears here and hear from some of our other guests this morning? Okay, so thank you, Mr. Kowalski, Mr. Averagely and Mr. Markland. Will you be staying with us for the balance of the morning or part of it? Okay, so great. I'm hoping that when we wrap up this morning, we'll also return to discussions with council. I'm guessing that at that point we might have questions to ask them to look into things after we've heard all the other testimony. Or you may have new questions by then, having heard the administration, for instance, and from our folks in the field. So our next scheduled guest is Mr. Stanek and I don't see him in the room at the moment. So just let me check with Jude to make sure that I'm not missing something. Mr. Stanek has not arrived. No. Okay. All right. Well, we'll see what happens there. Maybe he's gonna come in later. We'll then move on to our next witness and that is Annette Smith. Good morning, Ms. Smith. And just to let people know timing-wise, so it's 9.15, we're gonna have a break just before 10 and the administration's coming in at 10. So that gives us about 40 minutes with three guests. I'll ask people to aim for about 10 minutes of testimony and a little Q and A time. If we need more, we'll find a way to get it. But for now, on our first survey of the bill and hearing from folks out in the field, we'll try to get, cover the landscape, even if a little briefly. So good morning, Ms. Smith. Please go ahead. Good morning and thank you all for hearing from me today. I appreciate the invitation. My name is Annette Smith. I'm Executive Director of Remoders for Clean Environment. I have a hard stop at 9.30 because I am going to join a PUC workshop on their rule change. And my goal is to try and make it more friendly to citizens. And here I'm talking to you about a proposal that actually makes it less friendly to citizens. So let's see, here we go. There's some interesting history here. The governor's authority to reorganize the executive branch was granted by Act 245, signed by Governor Davis a few minutes before he signed Act 250. And then the next act in the series created the Agency of Natural Resources. I do think the findings are relevant. This is an excerpt from one of the findings that resulted from Act 246. And that is the goal of reorganization through coordination of government programs and policies to improve the relationship between citizens and government agencies. So this proposal weakens that relationship and it clearly applies to Act 250. And it also makes the government less accessible to citizens. These are the more detailed findings. There are some more that I left out. The underlying parts within the policy limits established by the legislature and should assure its responsiveness to popular control to carry out these policies. Administration of policies established by the legislature. Now I did focus groups with citizens about Act 250 in 2003. And overwhelmingly everyone said the district commission process is the best thing about Act 250. It's what really makes it work. And so the idea of eliminating the role of hearings by district commissions is very concerning. So the governor's executive order improperly interferes with the legislature's established policy for the role of district commissions. It's provided in chapter 151 as an essential part of legislative policy. It's this order strips the district commissions of many of their functions. And also a non-professional board like the NRB is part of the policy established by the legislature. As this is somewhat redundant. So I'll move on quickly. But this is the history of what happened. The big difference between what passed out of the Natural Resources Fish and Wildlife Committee and this executive order is that the appointment process was using the judicial nominating board and not serving at the pleasure of the governor. This slide could be titled Act 250 is broken right now. It is, it's not fully staffed. The commissioner positions are not being filled. Some expired terms aren't filled. The political appointment process is resulting in political appointments. And so you see that with each administration. This is a short list. I could go on and on about the issues that need to be looked at right now with how Act 250 is being administered. It's being degraded to the point that for instance with party status, I'm beginning to realize that I think it's easier to get standing at the Public Utility Commission than it is in Act 250. And that's, that should concern everyone. The citizen participation in Act 250 is greatly reduced. There's no open application process for district commissioners. We have a lot of talent in Vermont. And that's something to look at. This is probably the most important part that I have to offer you. And that is that in terms of this executive order, if you allow it to take effect, then you are also out of sync with your budgeting process. This proposal involves last year, the salaries were $145,000 each, plus equivalent payments for two district commissioners. They were proposed to be paid for by large fee increases that would be paid by all applicants, but only the majors would benefit from this professional board as it is proposed in the EO. And so I believe that your consideration of the merits of this proposal should occur only after disapproval of the EO. And then you can consider it and other ideas as part of your normal legislative process, which includes budgeting. But if this EO does not allow time for the legislature to make changes prior to April 15th, when your budgeting process still, in my experience, usually goes on until mid-May or later. And so allowing this to go in without grappling with all of the other issues with Act 250 and the budgets for the NRB, and it just does not make any sense for you to allow this to go into effect. And Ed Stanek gave excellent testimony, and I believe that link will work, that goes into the numbers and provides some further insight into this fee business. And it talked about the number of cases. So that is my input for today, but I would strongly recommend that you disapprove this and then move on with your work. Last year, 2018 had the commission on Act 250. It did good work. 2019, the House committee started grappling with all these really complicated issues. They did a good job developing a bill and then everybody was blindsided by this deal, which derailed their good process. And now here we go again. I mean, we need an honest legislative process about updating Act 250. Nobody disagrees that we shouldn't be making changes to Act 250. But let's do it in a typical legislative process where it's not already predetermined what the outcome is going to be. There are huge problems with this professional board idea. As we have seen with how challenging it is to participate at the Public Utility Commission, there are great stories about the district commission process enabling the average remonder to show up at a hearing, be heard, not have to have a lawyer. It cuts the cost for everyone. There's a lot of money involved in this proposal. And I think that that's a big factor, but the most important part of it is how do we have an accessible process? Because when it comes to protecting the environment, it is the citizens who are protecting their neighborhoods. And they're called nimbies and they're told that they're just selfish. But when you actually look at it, it is the people who live in the area who know the most about it, who are the best witnesses at the district commission and you don't have to have a lawyer to do it. So I really appreciate you hearing from me and thank you. I'm available for any questions. Okay. Any questions for Ms. Smith? Okay. Well, thank you for highlighting the interesting connection between the underlying statute to reorganize and its connection to Act 250 itself. It's illuminating. So, you know, I do have a quick question. It's a little bit off your presentation, but one of the other concerns I've heard expressed is that district commissions may issue rulings that are quote-unquote inconsistent. And I don't know if you've given any thought to the notion that inconsistency may be a question of perspective. One person might say this is a, that brings a local voice to a local project. So that's, you know, something like local control or local culture, local ethos, whatever we wanna call it. And therefore it's appropriate versus it's inconsistent because a similar project was judged differently in Maidstone versus in South Burlington. So is this fit into your examination so far of Act 250? Yes. And I should say that I've been a student of permit reform since 2000. It's like every two years it comes up. So I've got files and it's like we're living in Groundhog Day. So this is something that we've heard over and over again. So I have two responses to it. Whatever issues there are with inconsistency and how the commissions are run can be addressed by better training. There's no reason not to have training for commissioners. And I do think that commissioners per DM should be increased as it was proposed last year. The other answer I have is that I have now in the last 20 years worked all over Vermont. And I will say that every town has its own personality, every region has its own personality. And what goes on in my county of Rutland County is very different from what is happening in, for instance, Chittenden County. And when I did my focus groups I went to eight different regions and it was only when we got to Chittenden County that we started dealing with housing developments. Everywhere else it was quarries and transfer stations and things that affect rural areas. And so I think that Act of 50 was designed by its nature to be able to have each region reflect its regional differences. And by trying to centralize it and make it one overall guidance for the state you're ignoring the fact that every region really does have its unique aspects to it. And I think that it's something that is a benefit to the state and not a detriment. Great, well thank you very much for fitting us in. Good luck across the street, quote unquote across the street at the PUC. And thank you. I'm just gonna take a quick look and make sure I'm not overlooking anybody's hand. Okay, so thank you, Ms. Smith. With that, I'd like to move on to welcome former representative Fred Baser to the committee and my neighbor. It's nice to see you Fred without a mask on when we're out on the street, we're both masked. And you're the chair of District nine, isn't it right? So please, you've heard how we've covered so far. Love to hear now from district commission folks who are doing this work day by day to hear about the proposal. And I'll just add one more little lead-in. Sometimes I think the struggle we go through with Act 250 discussions and reform is a lack of a clear definition of the problem being solved. I'm not really sure and we'll ask the administration as what problem they're seeking to address in this EO. But as someone out in the field doing this work, it would be helpful for all of us to hear your take on the EO and- Sure, that was a perfect segue, Mr. Chair, to I guess really what I wanted to focus on. I had a conversation with commissioner Porter a few days ago, he called me and he clearly outlined the reasons why they wanted to make this change to the process, changing the commission structure. Number one was the consistency issue in permit rulings. And two was to bring some expertise and technical knowledge to the commission's acting on applications throughout the state. From my perspective, I've been the chair of the district nine commission, which is Addison County for two years. Some have been longer, some have been less, but I think I have a pretty good grasp of the process and to Annette's point and yours, I think perspective is important. People are all different and you're going to get different perspectives from different parts of the state. It happens in many important areas. Look at the judicial system. Does every court case come out exactly the same? It doesn't. They can vary quite a bit given what's been put forward. And I'll give you an example of the localness and the influence that it can have on decision-making. In statute, there's a clear ability for fees to be charged for more cars being generated by a project so that V-trans can perhaps put around about or a light or something like that in a major state thoroughfare. We had an application for an industry in Middlebury that because a number of employees was going to trip this law being effective and a handsome five-digit number and extra fees was going to be paid because of all the traffic that might exit the entity and go down the road and hit Route 7. What the law, in its strictest sense, didn't note was that there is actually two outlets on this industrial avenue that this new building and its employees would have. One was to Route 7, but one was to local roads where there were actually once it hit a certain intersection three places for people to go. And it was on the other access other than Route 7 where the commercial activity and most of the residents in Middlebury were located. So we felt that we would modify and we did modify fairly significantly the fee that was going to be charged due to the V-trans scenario because we felt it was burdensome and wasn't accurate given the alternatives workers would have. Perhaps in another community and another set of circumstances that wouldn't have happened and the full fee would have been charged. It happens reasonably regularly from what I understand where you're going to have local situations that demand or suggest changes. And I think it's a positive thing concerning the professionalism and technical expertise. When I first heard that as a commission chair, I said, you know, do they think we're stupid? Do they, you know, does the governor's office think that Fred Baser, Tim Taylor and so many others don't have good common sense? I think we all do. I can't speak to every commission and every commission share but I work hard to try to understand what's going on. And the way things work now, we have a lot of expertise available to us. You have the district coordinator. You have legal as part of the natural resource board. You have the ability to access state commissions, whether it's archaeological, whether it's natural resource oriented when it comes to water control, et cetera. All these things are available to us and there's a process that allows us to ask those questions of those folks. Plus applicants almost always, especially in a major scenario, bring experts quote unquote to the table to give us their interpretation or their understanding of, you know, the back corridor and if we change it or is it sufficient, et cetera, et cetera. So that someone with common sense and reasonable intelligence, you don't need a PhD serving on a commission has access to information that can be presented to us in layman's terms so that we can do the work to make common sense decisions on whether a development is appropriate or not and if it's appropriate, whether there's some things that need to be modified in order to protect the environment or protect neighbors or whatever the case might be. Also to Annette's point, when the commissions were established decades ago by some very good people, I think Senator Gibb from our Addison County once again was very active in this. I think they did make good sense in having citizens basically volunteers of the public to be the ones that are going to sit down and look at projects that fall under the Act 250 jurisdiction and make decisions on how these things will impact their neighbors, how these things are going to impact the environment. And I think that grassroots, the decision-making on important matters is one of the strengths that Vermont has always had. I don't know what's happened in the last decades that would warrant making this kind of a change for a full-time board basically and stripping as I understand most of the responsibilities that local commissioners might have with the exception of hearings when it comes to majors. The last point I guess I wanted to make was the way things are here is the chemistry between three full-time people who are making over 100K to do their work paired with two local commissioners who basically are volunteers and making a decision on a major application. Every bone in my body instincts say, that is awkward. That's an awkward scenario, you know. And to take it a step further with nine commissions around the state or districts around the state, they have the potential of working with a minimum of 18 different people assuming there's a major in every district. And since there are more than three commissioners, we have six in Addison County at the moment because you have alternates to deal with things like people recusing themselves. They can have 26, 30 different commissioners that they would be dealing with on the local basis. From a communication standpoint, both ways I think that's a very awkward situation. Lastly, I had sent something to Jude which she may pass out with some quick questions I had on the process that the governor outlined. Some of it was touched on by Ledge Council. So who can fire the full-time commissioners and under what circumstances? What happens if a full-time commissioner recuses themselves? Now you have four and even number, not desirable. So how would that be dealt with if a full-time commissioner feels they have a conflict of interest in taking up an application? Could the two local commissioners be paid? I can tell you there's going to be a problem in recruiting local commissioners with this. I had asked someone, because we had a vacancy, just days before the executive order, and I got an email from the person I had asked to consider serving on our commission saying, you know, with the governor's executive order, is there any merit? Should I move on? And I said, well, let's wait until the legislature deals with this. But I think it might be hard to recruit local commissioners given the status that they're going to have here. Mr. B. This is another issue, which was also brought up. Right. The recruitment, just so I understand, are you saying if it turns out that local, the district commissions will be relegated to just doing amendments or minors that are referred back to it by the full board? Are you saying that that'll make it harder because the mix of work is going to be changed compared to what you have now, a blend of majors and minors? The mix of work will change dramatically. And I guess the answer is yes. And I question, you know, I'm getting better as we all do at things that we work at for a period of time. You'll learn more. We're always learning. And with the many aspects to act 250, major, minor, administrative, the challenges with one of the criteria's can all be different. So we, we, did you lose me or can you hear me? You can hear you. Yeah. Okay. So. Having people be on the board consistently for a period of time, I think is very important in terms of them handling. Applications and doing the best job with them. And I think, I think this current system being proposed would be a problem. For that. Okay. And recruiting people to serve. Right. So I'm looking around the room to see if there's, I don't see any yellow hands up. Anyone want to wave at me holler out. Okay. Well. Thank you very much, Mr. Bayser. Great to hear a report from the field. And with that, I'd like to go on to another district commissioner who's joined us this morning. Mr. Taylor. Good morning. Hello folks. Thank you for this opportunity. I'm Tim Taylor and I'm the chair of district three, and I've been doing this for about 10 years now since 2011. I know a few of you in the room. I'm a farmer. My wife and I have cross road farm. We live in Thedford, Vermont, near Lake fairly. And. Chair Sheldon knows me. And some of you in the house know me too. So I've submitted something and maybe I'll get through most of it. Maybe I won't, but I just want you to know. That act two 50 is probably the one of the most significantly important things that's been in my life. So I went to Vermont law school before I farmed for 40 years. I'm still farming full time and I'm pushing 70 now. And when I graduated, I had the pleasure of having my clerkship with none other than Jonathan Brownell and Norris Hoyt. And I could tell you some great stories about that, but we don't have time for that. Then I took up farming and we had a little 15 acres. And having been in law school, I really didn't know what the heck I was doing as you can imagine when we started this farm in 1980. The same time our child, Mariah was born. We adjacent to us was 20 acres of some of the nicest farmland that you could ever want to grow on. And a fellow by the name of George Huntington was proposing 10, two acre lots there. And of course that triggered act two 50 and lo and behold, the district three act two 50 commission, which ironically I've chaired now for a while, decided Alice Flannery, Senator McCormick probably remembers her very well. I bet was chairing at the time and said, no, no, you violated three out of the four nine B prime ag soil issues and they decided against it. He turned around and he was smart man and sold us the land. And that became the cornerstone for our farm for the last 40 years, which we've fed the upper valley quite significantly. And right after that in the later 80s, a proposal came for 56 houses right behind us. Once again act two 50 stepped in. They pushed the, they saved the 20 acres of farmland there and pushed the houses into the woods. And lo and behold, we have a conserved farm with Vermont land trust now 56 acres. And we are one of them. I like to think of us as one of the, you know, more important, you know, we succeeded anyway. We're here in the upper valley doing our job. What I do want to point out to you folks in being district three is that I've, you know, I'm, we, our district covers Randolph. It covers little towns like Granville. So it covers Hartford. It covers Newberry. We even go into Addison County way up on the mountain. To the snowball. So I have a little experience of conducted about 70 of these hearings. And what I think you need to consider is, and you'll see this in my submittal, but when you look at this issue, this executive order, which is not very different from some of what was proposed last year is this proposal and keeping with act two 50 commission. I mean, why did we have the commission for two years? If now we're just simply going in another direction. So I'm going to give you a little bit of a brief, a little bit of a brief overview of the process. Has there been a history of this inconsistent decision making? I'd like to point out there, and I might elaborate. That probably 70% of the. Cases we've handled the. Issue comes down to criteria eight. Which if anyone knows, that's the aesthetic. Criteria. And that one has to do with the sensibilities. So offensive to the sensibilities of an average person. That's a violation of act two 50. And so that one allows for extremely particular circumstances in particular cases throughout the state. And there's different facts every time. And we've solved those problems by permitting almost every single one of them, however, with conditions. So it gets done. But the point is it's an average person standard. This doesn't require experts. If we need experts under rulemaking, we can get experts. We need legal help. We can get it. We did turn the natural resources, resources board. And there they are two attorneys that are very helpful to us. Another one are issues that I mentioned the complex issue a little bit physical austerity. This will be extremely expensive. We work for 50 bucks a day right now. And then do you, you know, this has been mentioned before, but I think it's the cornerstone to it. Do you want to reduce Dean Davis's core principle that act two 50 be decentralized and be accessible to their monitors? Now. For me. For me. Some of the most important things that happen in a hearing and sometimes let me just give you a quick rundown on how this works. Generally speaking. My coordinator Linda Madsen who's years and years of experience of this will get an application. She will review it. She will send out an email to me. And in that she will usually have a little bit of advice. She'll give me the link to the website that I go on to look at it. And to the other two commissioners as well. She will make a suggestion as to whether she thinks it might be a major or minor. And, you know, in these times we're trying to make things. As easy as we can. So we've been pushing out a lot of minors if we can do it. So we work really hard to make it a minor if we can do it. So we're trying to make it a minor if we can do it. But remember all ticks. So what will happen is that comes in. If it's deemed complete. Then we issue the permit right away within 30 days. Now that permit goes out when it goes out, it has the opportunity. For the neighbors to respond or the state agencies to respond. If they request a hearing at that point, it goes to hearing. It has nothing to do with us. It goes to hearing. So we're trying to get the application complete. We try to get it in and review and make sure that all the boxes are checked so that this permit will stand up and we'll go out as a minor. As you'll see in my statistics that I show from 2018, almost all of them went out as either administrative. Amendments or minors. There were very few hearings. I think something on the order of 35. Of which only five of those were appealed to the environmental court. So really what problem are we discussing? This is a very, very stable law. That has had very in my time in my 10 years, very little changes made to it. The quiche test still stands as I've mentioned for, for criteria eight. And. But to wrap up what is so important to me is when I conduct a hearing, I let folks know that I am not the state. Maybe I am the state, but I'm not. I'm a lay person. I'm just like them. If I were to come in to an comparable act to 50 hearing, I'd be coming in just like they do as a citizen. And that. As I conduct the hearing, I really direct myself to the questions that they have. And then what makes me the most satisfied is if at the end of that hearing, they come up to me and say, Hey, thank you. I know you probably don't agree with me, but you listen to me. And that made my day. And that may, and thank you very much. That's what the process is largely about is listening and hearing, being empathetic, being neighborly, being Vermont. That's the way I look at it. So. I could go on forever about it. So with that, I'll just pass it back to you all. Okay. Thank you. Any questions for Mr. Taylor. Sarah McCormick. Thanks. First of all, before a question, just a comment. Since I once had your job. I have a particular proprietary sense about the district three commission. And it sounds like, like not much has changed. And I want to also special point out. When you mentioned your farm in Thetford. I mean, there's a lot of farmland. And I'm not sure that you, I haven't been to Thetford because of Thetford's location. Relative to the Connecticut river and relative to the upper valley. There's not a lot of good farmland, not a lot of good bottom land and Eastern Vermont. It's not a coincidence that most of our farming is in the Northwest, which is the, the, the Champlain Valley. That's precious land. It's important. Hartford, Lebanon, the so-called tri-town area, which means it really is, it wants to become a bedroom community. And we're not gonna preserve that land through market forces. It's gonna be preserved through a little bit of social engineering. And so thank you for your, thank you for your good work. And we'll get together someday and talk about Alice Flannery. She was a piece of work. One quick comment, Senator Cormack. It's not without notice that I've been sitting next to a Saber field of the Upper Valley. That's the kinetic river. And that's actually a collage of study for 1999 Upper Valley. So she's one of my favorites. Yep. My dog ate her chickens in 1978. That's how we know. There's so many ways to meet your neighbors in Vermont. Yes. Well, thank you for this opportunity. Okay. Well, it's interesting to hear you describe the laws intentionally decentralized. And I've gone back and read the Addison Independent archives for when the governor and Art Gib presented on the bill in Middlebury back in 1970. And it's just interesting reading and they acknowledged there'll be some pushback but that it was essential work that needed to get started. So I think it's never had a totally smooth road, but meaningful conversations between people are not always that easy to engage in. I wanted to go back to something Mr. Smith brought up and that was local access. So if these meetings were moved to quote unquote the professional board, I mean, at the current moment everyone's virtually the same distance away from any meeting but I'm imagining at some point we'll all be sitting at tables again together. And I'm just wondering the degree to which you think it would change the nature of the process to have to be at a professional board meeting as opposed to a local district commission meeting. Well, I think that's what I sort of indicated. Again, it does have to do with the personality of the individual chair largely and how they comport themselves. But I think the history is there and that being a lay person, you have a kind of empathy and you don't ever get jaundiced in the same way that potentially a professional does. I remember one time, one of my commissioners was texting on the phone while we were listening to testimony and after that, I really talked to that person. I said, no, if you're gonna do this you need to give your full attention to them. That's very important. So I think there would be a degree more of intimidation without that. When we did exit four, if you remember Sam Samus wanting to do what would have been the largest project since Taft Flats, there were 160 plus people in the room, but I stood up and I went around the room and I directed myself to each individual and I had them introduce themselves. It took some time, but I think it was very important to do that. So I just don't see where the problem is. I really don't, especially when you see so few of these going to appeal to the district, to the environmental court. I think there are things to discuss about changing Act 250, maybe if it's any jurisdiction, but I wouldn't be touching what we do as civilians as lay people. I think we're doing a good job. Any questions for Mr. Taylor before we take a break here? Okay, so thank you to everyone who's here and participating. We're gonna take a break till 10 o'clock at which point the administration will be joining us. So we'll learn some more about the executive order. And we, the streaming, the public YouTube streaming will continue throughout the break. So I'd suggest that you mute and stop your video so you don't reveal more to the world than you intended on a break. Okay, well, let's do one thing for ourselves here while we're waiting for the rest of the guests to assemble. And I skipped over this on my own notes from this morning, which was to pause and just go around the room because it's a new session, committees have changed and we all haven't necessarily met each other. So I just thought we would just say for everyone who's on the two committees and so that the public listening in, we're all labeled these days on Zoom, but it's not quite the same as saying hello. So sorry for that oversight. I skipped my own outline and I'll ask to just go through your committee alphabetically and with that, I'll just jump in starting with our own committee. So my name is Chris Bray and I represent the Addison Senate District. This is a test of whether everyone knows where they are in the Alameda district. So Senator Campion would be next and his Hollywood square is black. So let's move on. Mark McDonald, Orange County, Seth Bongards. The first sighting I've seen you since we served in the house long ago. I'm Dick McCormick, yes, I'm Dick McCormick, former chair of the district three environmental commission. Senator Westman. I'm Rach Westman, I'm the senator for the White House. Senator Bray, I'm back, I apologize. I just need to say who you are, where you're from. Yes, no, I understand that Senator Campion, Bennington County and Wilmington, always great to be with the house, especially Chair Sheldon and Representative Bongards and wonderful to see the former senator, Diane Snelling joining us. All right, so how about the house team there? We've never tried to do alphabetical, but I think we should give it the open house try. We set the bar a little bit low there, so make a whack at it. But that puts Nelson Brownell, by representing Pamela Woodford from Bennington One. Seth Bongards, representing Bennington Four, Arlington, Manchester, Sandgate and Sunderland, or almost all of Sunderland. Share a little bit of it with representative Durfee. And my district mate, Kathleen James, but Seth Bongards. Not sure if Representative Dolan's with us, she's also was headed to house appropriations. I am here. All right. Representative Dolan from Washington Seven District, which includes Facedon, Duxbury, Moortown, Wittesfield and Warren, thank you. All right, it gets more confusing. Paul, I think you're up. Yeah, I was confused. Paul LeFaye from Newark. I represent six towns in Northern Essex County, one town in Orleans County, and one town in Caledonia County, which is my own. Thank you. Representative Morgan. Excuse me. Good morning, I'm Leland Morgan. I represent all of Grand Isle County and the western portion of Milton. I think that completes our mail. Doesn't, we're not even, we have representative Morris, are you in the room? I am. Thank you very much, Madam Chair. Kristi Morris, representing the large town of Springfield. Oh, I don't know if Harvey Smith, I think he might have left. Amy Sheldon, I represent Middlebury. And I'm here. Larry Sackowitz, represent Orange Washington Addison District. Oh, thanks. Sorry, Larry. And Representative Taranzini may have left also. Okay. All right. Well, I don't see any other squares to uncover here. So thank you, everyone. And we're going to recommence. So welcome to Secretary Moore, I see. Commissioner Porter, Ms. Johnson. And I don't know if you have anyone else with you and I'm not seeing them on the screen here. Okay. So just so you'll know where we've been so far this morning, we did two things. We started with our own Ledge Council. We looked, and we've been looking at the bill from the EO, excuse me, from two perspectives. One in terms of the content, what's the idea here and what are its merits? We've had a little feedback from some district commissioners. And the other thing that Ledge Council helped us take a look at is the legal structure of the bill. So for instance, not to be too opaque about this, for instance, the provision that the EO outlines for having a rejection, should it not be approved that both House and Senate must disapprove? So we're doing both. And I thought maybe we would follow the same path we started this morning, which was start with the content. You know, what's the idea? Why did you bring the bill forward? I always figure any, again, I said bill, EO. You know, when we start any bill and committee, we always start with the same two questions. What opportunity or problem do you see and how does the proposal you're making address one or both? So for that, Secretary Moore, I'll ask you to run your team and feel free to move back and forth, call and defer to each other, et cetera. So thanks for coming. You're welcome, Senator. Thank you for having me this morning. I will keep my remarks rather brief, but I'm also happy to answer questions folks might have once I complete them about the content. I think at its most basic, the proposal is getting at the fact that Act 250 currently isn't well positioned necessarily to grow and evolve and remain relevant in a world that is increasingly complicated and frankly, litigious. And there are challenges associated with the decentralized model of district commissions and the really important, robust and technical, deeply technical issues that at times are coming before the commissions. And so the proposal to professionalize the Natural Resources Board and create full-time staff positions for reviewing major applications. And those are the applications where those most complicated issues tend to arise, would allow for board members to develop experience and expertise drawing from the talent within the agency of natural resources and other parts of state government. But to really serve that role that Act 250 plays in protecting Vermont's natural resources. I would add that I think it's important to, or I guess I would not want it to go without saying that we are committed to the protection of natural resources. This isn't an effort frankly to undermine the protections afforded by Act 250 and the important regulatory tool that it is, but rather really this reflection of the increasingly complex world that we're operating in and that a model that has served us very well for 50 years is not particularly well positioned necessarily to serve us well into the future. And maybe just pause there with an opportunity if folks have specific questions about the content, I'm happy to take them up, but thought it was important to start with that kind of framing. Sure, thank you. I'm looking around to see it. I don't see any hands at the moment. Okay. Senator Campion. I'm secretary, good to see you. Nice to see you too. I don't know if you were on prior to now listening at all to some of you weren't, okay. So there has, there's great, significant concern about taking this away from, I'm sorry, is Senator Bray, is that your phone? No, not me. Taking this away from local control isn't really quite the way I want to say it, but folks that know their communities, communities differ even from miles away from one another. So could you say something about that and why you moved in that direction? Yeah, well, and I think it's important to acknowledge that we had a lot of discussion around that in the House Natural Resources Committee during the last biennium when we initially had brought forward this proposal as part of a larger Act 250 modernization package. And the discussion in that committee is reflected in the EO in that the proposal in front of you has those three permanent or full-time board members augmented by two representatives of the local district. The intention there is to provide that consistency while at the same time making sure that local concerns and issues have a voice at the table and in the process. And we think that that strikes an important balance between sort of allowing people to accrue the depth of knowledge needed to take on some of these more complicated tasks balanced against the perspective of folks who live in the area on the ground and can anticipate the impacts it could have for their communities. Thank you for that. And just may I Mr. Chair follow up? Yes, please. And just for my own clarification, Secretary Morrke, are those individuals, are they in the decision-making camp? In other words, are they making decisions as local representatives? Are they similar to what one might consider to be a witness, coming in, talking and informing those that are actually going to make the decisions? They would be participating with the board in the conversation. I would actually need to defer to Jay. I apologize in that I don't remember if we had talked both about having them have a voting role or an advisory role. And I can't remember where that landed my apologies. That's okay. Is it okay if Ms. Johnson responds to that? Yes, yes, please. It's contemplated that they have a voting role on the issue which is affecting their district. So may I just take that? So if a committee, if a community is sending two representatives and is it two representatives from each town or is it more geographic? Is it sort of like? It's from the district commission. Oh, from the district right, from the district commission. So Ms. Johnson, you're saying that those during a particular case, those two individuals would vote, it would be really a vote of five instead of three. That's correct. Thank you. Senator McDonald? I was just stated that the district commission would send two people. I believe my understanding was that the board above would select two people. Which is it? The district commissioner, the chair of the district commission chooses two commissioners to sit with the natural resources board on the issue. Not the natural resources board selecting the two. No. Thank you. You know, we've talked with you a lot over the years about at 250. And there, sometimes it's a challenging area of law to talk about because there are a lot of different impressions of what's going on. And so it would be helpful, I think for the committees to hear about, you mentioned for instance, consistency. And I think that's one of the things I've heard mentioned quite a few times. And there's a tension between consistency and local decision-making that reflects the local, you might say the personality of the district and the inhabitants of that district as they review a permit. And so I'm wondering about on the consistency side, what particular problems are you seeing that make you, you know, what have you seen specifically that makes you conclude that there is a problem that merits being addressed out there? Sure. I can start with a state agency example actually drawn from V-Trans, but then may turn it over to Lewis and he can speak to it, perhaps some more specific examples from his department. But the example from V-Trans is regarding the application of the 10 acre threshold to preexisting development. As you may be aware, different bridge and exit replacement projects at times exceed that threshold. And there have been differing opinions as to when V-Trans needs to seek an Act 250 permit depending on the jurisdictional opinion issued in that particular, by that particular district commission. I think most recently there were concerns around the project they're pursuing at exit 17 off of by 89, but this is something that has come up for them before and is maybe the easiest example to point to about the types of concerns that come up. I don't know, Lewis, if there's anything you would add? The only thing I'd add is a general comment which is I think that the chair is right. It's a balance between wanting local voice, local information, local feelings and a statewide consistent approach to cases and what cases are judged on and how they're judged. And I think that's exactly why the EO is structured as it is to include both of those elements. So you will have consistent application from the full-time board members and you will also have input from those who know the local area and community best. What we see now is quite significant differences at times across the commissions, understandably so because they are all from those regional or local areas and they are informed by past cases they work on. And you're mentioning past cases. So can you say, this may be a question more from Ms. Johnson, I don't know the degree or also the NRV is here with us this morning. The degree to which an opinion issued by a district commission like a jail has, you know, presidential power or influence over future decisions. Can they, you know, to some degree must they all be quote unquote consistent or is there an allowable degree of variation that reflects the facts on the ground because literally every application is unique in some ways. I think Chair, that is a question probably best put to the NRV and either Chair Snelling or Greg Bobel, her attorney. Okay, so we'll hold on to that one and Mr. Bobel, if you can help me not forget to come back to that, that would be helpful, thanks. Sure. You know, so I'll just bring forward something that some of the district commissioners who are in here shared with us. And that was that on the question of technical expertise that they felt as though they were well enough resourced that however complex the application became that they could draw on A&R assistance and other experts in order to come up to speed on the issues in front of them. So do you have, you know, a response, I'm not trying to debate, I'm just trying to bring forward things we've already heard this morning. Do you have any thoughts on that? Yeah, and I think that that is both the opportunity and the challenge. We have compiled the number of hours A&R staff spend participating in Act 250 on average each year. And it works out to be about three quarters of a million dollars worth of staff time. And part of that is because it is a more significant lift working with nine different district commissions, the rotating memberships of those commissions to provide that technical assistance in education. Lewis can certainly speak to that in more detail. But that's one of our most significant concerns is that it is a really significant demand on agency staff time. And to the extent where we're working with a smaller group that can build expertise over time, we are anticipating that that will reduce the demands on our staff time. And that is significant in this area or this time of constrained and finite resources. I don't know, Lewis, if there's anything you'd add there. Yes, thank you, Secretary Moore. I second everything you said for the Fish and Wildlife Department. It's give or take $300,000 a year on Act 250 depending on the number of projects. We do not receive funding for that from the applicants, from the developers. We pay for that essentially from funds we get from hunters, anglers and trappers or from recreational shooters through federal aid money. But I would like to go back briefly because I did have the opportunity and advantage of hearing your prior testimony. And I think that the folks you had from the district commissions who I have a tremendous amount of personally and for the work they do on behalf of their communities in the state made an interesting point. I think it was Fred Bezer said, well, we have access to the district coordinators and we have access to the experts from the applicants and we have access to the state agencies, all of which is true, all of which is an important part of the process. But I would just suggest to you that some additional expertise and experience and knowledge among those making the decisions would help those decisions not be as subject to the direction of any of those groups that I just mentioned. All of those groups have important input to the process, important expertise that they do and should bring to bear. But I do think that what is a volunteer board of citizens can be subject to the expert opinions that come before them and would be benefit from greater experienced knowledge and longevity on making those decisions and gaining knowledge themselves. I don't know if that makes sense, Mr. Chair, if I'm getting my point across, but I think that when you hear the list of people who are relied on, all good people, but all who have their own perspective and their own interests in the case. Thank you. You and the secretary have mentioned the costs-related aspects and we're sensitive to that. As a matter of fact, we've had a discussion last year and already started one this year, getting ready for this session about finding funding for fish and wildlife so that you're remunerated for your efforts in supporting Act 250 applications like the environmental impact assessment work you have to do. So we're cognizant that we need to pay for the services we're expecting for government and you should just have to stretch your budget further and further every year. That said, have you analyzed, maybe it's a Madam Secretary question, the relative costs of providing technical expertise out to the nine DCs versus building more centralized expertise on a board with full-time professional staffing? At this point, Chair, we haven't taken our analysis to that level. We went through the work of trying to come up with a realistic estimate across the agency of staff time spent on reviewing and participating in Act 250 proceedings, but haven't yet forecast what the reduction in those demands is anticipated to be as a result of a centralized structure. I'm happy to take that analysis to the next level, just recognizing it would be a bit of a swag. I would only add to that, Mr. Chair, if I could that it goes beyond the scope of an EO or a governor's executive order authority, but we are interested in having a discussion with these two committees and others in the legislature about those services, how they're paid, whether there's a more efficient and better way to provide those services and so on. So it's not that we're ignoring that part of the conversation, just it goes beyond the scope of an EO. Thank you. Sure, Senator Campion. And then sorry, I see some, now I do see other hands up, so I'll keep going. Do you anticipate the administration putting forward a fee bill this year? I don't, not that implicates A&R fees at this point in time, although as commission reporter indicated, we do anticipate that there will be a larger Act 250 modernization proposal that the administration supports that will be introduced, and that does include the wildlife permit component of it, which is one of the mechanisms we're looking at in terms of providing financial support to the department for their engagement in Act 250, but in terms of a specific fee bill, we are not anticipating that this year. If I may add to that briefly, and I apologize for the tag team here, if it gets too much, just let me know. A Fish and Wildlife fee bill would not do much to answer the concern that I have because our fees are levied on hunters, anglers, and trappers. My concern is that we are providing a service that benefits both certainly the resource project applicants and project opponents for which there is not a funding mechanism put into place. So a fee bill would not address that, Senator Campion. Thank you. I appreciate that, yeah, that wasn't, I was just curious in general with regard to a fee bill. I mean, this isn't, you know, we're hearing that across the state agencies are stretched and so it was just a general question. Thank you, Mr. Chair. So next up will be Chair Sheldon, then Senator McCormick, Representative Dolan and Representative Fave. Sorry if that's not the order in which you raised your hands, but I see four hands up now. So we'll go right down the line. Thank you. Thanks, Chair Bray. Since we're talking about money, I'm hoping the agency can, you told us how much you spend on A&R or on Act 250 permits a year. How much do you receive from Act 250 fees every year? I will let Lewis correct me if I'm wrong because he's been a little bit more in the details, but it's on the order, but I believe $200,000 a year. Okay, thanks. And then how much will the new professional board cost and how are you proposing to pay for that? So that is a good question. We've really focused in thinking about the cost on the cost of making the transition. I think in making this transition, there are probably some larger opportunities for looking at the structure of the NRB overall and thinking that through. But we haven't gone to those steps beyond just affecting the transition. We anticipate, however, that in the first year, and I believe this information was presented in your committee last year, Chair Sheldon, and we haven't revised it since then that we anticipated it would take between $500,000 and $600,000 to make that transition. And can I just, did you know, do you have you identified a source for that money? I don't want to get out in front of the governor in presenting his budget, but I am anticipating it would take the form of a one-time allocation. Thank you. Okay, anything more, Representative Sheldon? No, thanks. Okay, Senator McCormick. Thanks. Over the years, someone said earlier that this is sort of like Roundhog Day. It's not only the constant complaints about active 50, but it's always the same complaints. And they're the ones that were predicted by Dean Davis himself. And one of them that I've heard is something referred to as quote, you guys in Montpelier. It's that you guys in Montpelier don't trust local communities and that there's too much top down from you guys in Montpelier. And I've got to say it's very surprising that we would take power away from the community and concentrate it up with you guys in Montpelier. But the other thing I want to say, having been, having chaired district commission is that the expertise issue matters. It's a quasi-judicial board. The chair is a quasi-judge, but not a judge. I think these days the chair is usually law-trained. I was not law-trained when I chaired the commission. But I got to tell you, I spent a lot of time on the phone to Montpelier and got guidance from the council to the state then environmental board. But you also, you don't have to be an expert yourself to have the intelligence and capacity for attention to take expert testimony and understand it and ask the questions necessary when you don't. So I guess, if I have a question, that was a speech and I apologize. For my question is this, you said that the active 50 is not well positioned to deal with current development issues. And I'm wondering if you could go into a little more detail. What is the problem that if we have too much local control, what is the problem with local control that this is intended to fix? Sure. And I apologize, Senator. I may have not been as clear as I could have been in my remarks. Really our focus is on looking at the interest the general assembly has expressed in new criteria, sort of reflecting on the larger evolution of our regulatory landscape. There are places now that that ANR has permitting and regulatory authority that certainly didn't exist when active 50 came into being. And there are places that it clearly are important to our environmental goals moving forward. Obviously the body spent a long time last session discussing a forest fragmentation criteria. I know that in house natural, there was also discussion around a climate change criteria. And really what I was endeavoring to reflect is to the extent we're going to take on new areas within active 50 that are technically complex and will require a significant sort of startup relative to their administration. I think that this sort of reformed board structure would serve us exceedingly well and create the capacity for active 50 to take on these next generation challenges. It's less a reflection of current conditions on the ground although there is a piece of that and more frankly forward looking at what my understanding has been this body's interest is as well as my own agency's interest in the role active 50 can play going forward. Okay, I'm Mr. Chairman. I'm still not sure what the problem is we're being asked to fix with this executive order but we have time, we have 90 days. So going down, thank you. Going down the line, Representative Dolan. Thank you and good morning. Good to see you again today. My question and thank you for coming in to help explain the nuances of this executive order. My question is about cost when we think about public participation at the local level that is all about accessibility of the process by the public to weigh in on important matters that are affecting their livelihood, their communities. And so that cost for public participation matters. When we centralize it, I presume it may end up resulting in increasing the cost of an individual wishing to participate in a process such as active 50 proceedings. And I think what this proposal somewhat looks like is a public utility commission that is able to manage some of those costs with a whole department to represent the public interest. The public advocate is the department of public service with the quasi-judicial board being a centralized board to hear testimony. So I guess my question is, and yet that is because of the legal nature of those proceedings, it ends up requiring legal support to shepherd forward proposals in front of the public utility commission. So have you evaluated some of these costs that may be borne by the citizens of Vermont or the residents of Vermont for participating in active 50 proceedings? I wouldn't say we've done that specifically or explicitly, but I do think it's important to state upfront that the intention is not to modify the opportunities for public participation appreciating very much sort of the look and feel of active 50 and that it does allow for concerned neighbors and local residents to have a platform to raise issues and concerns and voice opinions. There's no intention to move away from that. And I think there are ways to be cognizant of those needs, including having hearings take place in the district where the application hailed from that will continue to be important tools as we move forward. If I might just add briefly to that, this proposal would add capacity to the NRB. The current capacity that exists would remain and it would add capacity at least in the form of three professional full-time board members who would do work in addition to the current staff at NRB as I read it anyway. So I think that that would provide additional ability to manage that from what exists now in the board. And Representative Lefebvre, thank you for waiting so patiently. Thank you. You're welcome. My question for the commissioner, he mentioned that his department spends about $300,000 a year. Is that on both major and minor projects commissioner? That is across our Act 250 work. And that's a variable number based on the number of projects and the complexity of projects. But yes, it's across our Act 250 work. In general, the vast majority is on major projects. The minors are relatively quick. Am I correct in assuming that that's the kind of work you do to determine if a project will have an impact on a habitat or a wildlife corridor or something along those lines? Wildlife corridors are not really covered by Act 250 currently, but yes, that's the review and study we do of projects impact on things like bear habitat and deer wintering yards, riparian areas, things like that. And presently, you do not have a billback authority. As far as the project developer is concerned, you cannot bill back the work you do. So that's a little bit of a complicated question. There is a statute authorizing A&R billback on this kind of work, but the reality is that the administrative and legal confines on that are so strict, it renders it basically unusable. And I'm happy to go into that in more detail at some other point if you'd like or now if you'd like, but essentially the sideboards on that and the difficulty of administering it are very strict, thank you. My last question is to just follow up with, but how would that change then? How would the change from district commissions to a professional board impact the amount of money that the department is spending to do this kind of work? Well, it would change directly because of this EO and the change in structure in one way, which is that we would gain the ability to work in a longer term and narrower way with a smaller number of folks to develop expertise and experience and knowledge. Right now, we spend quite a bit of time in working with district commissions all over the state who due to the workload frequently turn over and we sort of rolling a rock uphill in terms of that work. We're happy to do it because it's an investment in the process and investment in the district commissions, but it does take a tremendous amount of our work. So the professionalization, the added expertise and longevity would help in that area. But I will say that this executive order does not impose a fee or a change in billback that would allow us to recoup funds directly. We do contemplate having that conversation or would like to have that conversation with the legislature in the legislative process that goes beyond the scope of an EO. Thank you, President LaFave. Anything more? Thank you. Thank you, Mr. Chair. Okay. Any other questions focused more on the content side of the executive order at this point? Okay. So then I'd like to change gears a little bit and refer everyone back to probably the most useful thing to take a look at again to remind yourself is the memo that Mr. Martland wrote at the request of the President Pro Tem the legal status of the executive order. And so I'll boil it down to two questions. And I guess I'll address them to Ms. Johnson and then others of course, if you have questions you wanna chip in, let's I'll keep an eye out for hands. So Ms. Johnson, thank you for coming. I guess the simplest question is as we were informed by our council, the terms of the executive order require both House and Senate to should they not wanna approve of the executive order that both bodies must disapprove of the executive order. And the underlying statute talks about a either body disapproving is sufficient. And then they pointed out the legislative history where previous EOs by this administration didn't include this must be rejected twice sort of language. And it wasn't challenged by administration previously. So I'm just wondering if you could explain the thinking behind changing the test that is offered in the language. Thank you, Mr. Chair. Jay Pershing Johnson, governor's legal counsel. I, so the difference essentially is to put, I think, to give the legislature notice. The last time we sought reorganization was in 2017, the first few days of the administration. So we did not challenge the existing structure. We were proceeding as set out in the statute in the intervening period. We have done a lot more research on separation of powers and bicameral action. And there's a very, there's a leading case in the US Supreme Court, INS Vichata, which you probably are aware of, which is very clear about the constitutionality of a one house veto. So I think in this executive order, we wanted to be clear that we were putting the general assembly on notice that that was our position. That said, you may have, and I haven't seen Mr. Martlin's memo. There's also a memo from 2017 from Michael Grady to Representative Olson on this exact same issue where Mr. O'Grady goes into the various legal arguments that one might take on this issue. And I've sent that to Jude if the committees are interested, but you might have also heard that yesterday a suit was filed challenging the executive order as well on several grounds, but one of the issues is the constitutionality of a statutory structure in its entirety. So while we believe our position is strong, we also understand that reasonable lawyers can take different views of the law. And since this has been thrown into the court, it's our position. We'd like to see the courts decide on the legal issues. We're hoping that they understand the timing constraints and would act quickly. And we would like to see the committees continue to work on the merits of the proposal and let the courts make a determination on the legal issues. Senator Campion. By the legal issues, you're talking specifically about whether or not both House and Senate need to reject in order for this to be rejected. From my perspective, that's the issue raised by legislative council. There are other legal issues raised in the complaint in the lawsuit. And are you, just for clarity, are you saying that the legislative council is, my words, mistaken that this just needs to be rejected by one of the two bodies in order for it not to go into effect? I would say that if you look at Michael Grady's memo, you will see that there are two valid positions. I would say that I'm on one side and probably Tourney Martland is on the other. But I think it's important to maybe understand the two issues by looking at that 2017 memo. What is- In addition, I think that the court, when if the court gets to the merits of the complaint would be addressing the statutory structure of the constitutionality of the statutory structure. What does statute say now about this? I mean, I appreciate that there might be debate, discussion, true with a lot of things that we all do. What does statute say now? Statute says now that one house must disapprove. Oh, okay, that's, okay. So that's what we should be operating on, I would say. Sure, I mean, things could change, absolutely. I mean, lawsuits could happen, debate could take place, but okay, thank you. Sure, I mean, I just would like to point out that since that law was enacted, there is US Supreme Court case law and the constitutionality of a one house veto. And so we'll have to look into that further. I guess what becomes a little complicated here is to use the statute whose constitutionality is being challenged or, and what you're sort of asserting like the case at the INSV Chata is to use that same statute in order to bring the EO to the legislature at all. So if it's unconstitutional, I don't, I'm wondering if it's a constitutional vehicle for even bringing an executive order to the legislature. Quite honestly, I think the law in total, section 2001 and section 2002 of Title III are very clear that the governor can bring this executive order for restructuring of the executive branch to the legislature. Further, the constitution provides for a process bicameral and presentment process pursuant to which all legislation is enacted. I don't believe that the law fails in its entirety because of this flaw. Okay, well, we have more to look into. I mean, I'm comparing that with a bill, right? So a bill is offered, a bill goes through, it has to be approved, not disapproved by the two bodies and then presented to the governor. So it seems as though with this 90-day clock running and a power only to disapprove that it puts the legislature into a very different posture than bringing forth a bill that then may be vetoed. So we'll have more to learn on that one. Any other questions on that, the test for whether it's approved or disapproved? Senator McCormick. Yeah, thanks. I wanna make a comment about the one house veto and invite a response. I guess that would be a question then. The phrasing of an override vote is not shall the veto be sustained the question is, shall the bill pass the veto not withstanding? And so if either house decides not to do that, then you don't have two houses voting to pass the bill. So it does not advance. That is actually, it seems to me what's operating there is the requirement of two houses. And if one house votes not to pass the bill, the governor's veto not withstanding, then in fact what has happened is you have not gotten your two houses. The second comment I wanted to make and again invite a response is I have on numerous occasions voted for a bill that I knew full well some people thought was unconstitutional, but I have never voted for a bill that I thought was unconstitutional. The argument, well, let the courts decide is when you say let the courts decide if you think the bill is constitutional, let the courts decide what you say to someone who insists that it's not. And who says you can't vote for this because I think it's unconstitutional. And I said, well, the courts will have to decide that. Perhaps you would vote for an unconstitutional bill to create a test case. But otherwise I think we are bound not to pass a bill if we think it's unconstitutional. So my understanding is that in fact, the statute that allows for a one house veto of the governor's executive order, I'm using the word veto incorrectly, but the last one house to reject an executive order in this case, I think that may in fact be unconstitutional and I'd be reluctant to operate under that provision. And I'll welcome a response. Ms. Johnson, anything? I'm entirely clear what the question is. Okay, how do you address the fact that the Vermont constitution says you have to have both houses? Well, there's two provisions. That's the simple. Well, there are two provisions. One is presentment and bicameral action presentment in order to enact a law. The governor's veto and one house action is contemplated in the constitution. This as actually even Senator Bray has corrected himself several times is not a bill. This is a structure that the legislature itself has constructed. What I'm saying is I don't believe it's as constructed is constitutional. Attorney Martlin clearly disagrees. When we have two branches of government with different positions on the law, seems to me prudent to let the third branch decide. Well, we only have 90 days. We only have 90 days that we have to take some kind of action or not. Within 90 days. We decide with, yeah. And we have some time and you have some time to consider the proposal on the merits. Separate question. Sorry, Senator MacDonald. No, I'll just say this. That's a separate question. Sure. Has the administration proposed any new language around it? I mean, it seems as though what you're asserting is that there's a flaw in the underlying statute. It's unconstitutional and do you have language to address that flaw in statute that would pave the way for this or future EOs not turn into this controversy? I personally do not have a proposal for a statutory change. All right, so any other questions on that? The other area that came up and it was a quote unquote gray area was the extent to which the underlying statute contemplates changes as substantive as what's proposed in outline form in this executive order. Do you have any thoughts on that? The question is whether these changes are too substantive? Correct, rather than reorganization that it will end up changing statute to create a new board, move powers that currently reside with the district commission, for instance, to the new board, take powers away from existing statutorily empowered district commissions and then rules, policies, procedures all follow with it. So it's more than an org chart change. It's going to have changes throughout statute law policy program. I believe that section 202 authorizes the governor in this instance to make changes that are contrary to statute. It expressly contemplates that. All right, sure, right. And okay, so I'll leave it there. I mean, I'm not in a position to get into a legal debate over the extent of the change. The question that has come up was how much change is permissible before it is changing policy and things in the purview of the legislature. I guess the other way I've heard that expressed is this statue may, if it's interpreted as giving powers that broad to the executive to write new law in essence, it may be over delegation to another branch, right? Well, it sounds as though you may have read the complaint. I would say that since that's being litigated, I would want the courts, I think, to weigh in on that. I would like to point out that as a matter of, say the emergency powers, which sort of raises the same issue, there is a provision in chapter one of the Constitution regarding the authority of the legislature to suspend the laws. Only the legislature can suspend the laws unless it provides authority to others to do so. Section 202 clearly has done that. And you've done that as well in title 20 with respect to emergency powers. Those bodies, yeah. I'm not seeing any more hands on these questions. Senator McDonald. So the question that we're contemplating is whether we take this or leave it, is that correct? Is that a question for me? For anybody. Oh, that's the choice that's given in the law. It's up or down. Oh, thank you. Good enough for me. All right, anything else? Members of the administrative team would like to share with us before we move on. Okay, thank you for, I don't know if you'll be able to stick with us or some of you, thank you for coming over and helping us keep the conversation going. As a reminder to everyone, this is day one. We're really doing a pretty rapid scan of the landscape and we'll come back to more particular questions in days ahead. With that, I'd like to turn to the Natural Resources Board members. And so I see Chair Snelling and Mr. Bobo. So good morning and thank you for joining us. I would want to welcome any kind of remarks you have about the executive order and in response to the discussion you've heard. And Chair Snelling, I saw your hand going up a while ago at some point of- Not important. So fast. Okay, so please go ahead and we'd like to hear your thoughts on the proposal in the executive order. Thank you and it's great to be here today on Diane Snelling and Chair of the Natural Resources Board in Act 250. And really what I want to say today is a direct response to my experience for the almost five years that I've served as chair of the Natural Resources Board. I keep hearing reference to three new members of the board and I just want to remind you that I'm the chair now and there would be a chair in this proposal. So it's really two new members and I think that when you think about it that way you can see a very obvious balance between the board members and the local. So to me, the option of that or the advantage of that is really gaining a broader experience with which to make these important decisions. So I do support the idea of a full-time board and I want at the same time to say that our current board of volunteers is very engaged and yet it's practically impossible to give them sufficient information in a meeting once a month or even as often as they might be able to meet that really allows for a deeply informed and engaged conversation about the issues that we encounter every single day at the NRB. So I just wanted you to think about it is what facilitates the goals and purpose of the NRB and Act 250 better than a stronger board to work through those questions and I guess we're just leaving it at that. So just to make sure that I understand and others the current board structure you're a full-time employee of the state and your chair of that three-member board, correct? No, currently, I'm sorry, Senator, currently there's a chair myself who's a full-time member and four volunteer members who are paid per diem to meet and we have been meeting once a month and sharing, as I say, as much as we can but it's very difficult in a limited timeframe to become as informed as you all well know about the complexity of the issues in front of us. Sure. And the four volunteers, they paid the same per diem like the members of the district commission. $50, whatever. Yep, okay. And what business coming are you, I just wanna make sure we know how this works currently. What kind of work comes before the current board? Discussion of the budget, every, you know, the annual budget as we go through the budget process and any discussions about personnel and staff to some extent and most directly, the policies that are being discussed in the legislature. Okay. But are any permit applications referred up to the current board? No. Okay. No, my role as chair is in dealing with appeals and enforcement violations as well as trying to manage the day-to-day of the processing in nine districts. Okay. And what kind of appeals currently come to you or the board? What kind of appeals? I mean, are these for jurisdictional opinions or an application is denied? Appeals of commission decisions. Greg, help me out here. Sure. Yeah. Let me, I just wanted to clarify a few things. It's not, and I think we're all aware of this. The natural resources board doesn't currently hear appeals of district commissions or of coordinator decisions regarding jurisdictional opinions. Those appeals both go to the superior court environmental division, but the natural resources board is a party to those appeals. So to the extent the natural resources board decides to participate in those appeals and the position that the natural resources board ultimately takes with respect to those appeals is ultimately up to the natural resources board. And just to give a little more background as a matter, the natural resources board has historically has historically delegated a vast amount of the authority that it has with respect to participation in appeals and enforcement and so forth to the chair directly. So the chair who is in the office day-to-day who knows what the issues are make those sorts of decisions on his or her own without having to defer to the board at large. Okay, thank you. There are, by the way, a couple of appeals, types of appeals, the natural resources board has the authority to hear, but which literally never have actually come before the board as far as I am aware, including a provision that allows applicants to appeal, a commission's decision regarding fee requests. They're the board, the natural resources board also has the authority to hear appeals from energy efficiency determinations by the PUC or by DPS, by the Department of Public Service. Neither of those types of appeals has the natural resources board heard, you know, in at least the last five, six, seven, eight years. So, Mr. Chair, I just wanted to clarify when I said that as the chair of the natural resources board, I get very involved in appeals. It's in strategic conversation with the legal team, which can take up significant amount of time. And all I'm trying to say is that there are very complex arguments that come up all the time in terms of, you know, quick decisions need to be made. And I think that it would be very much to the benefit of the overall system if we had this balance between the full-time board and the very informed and significant influence of the local municipalities and regional planning. Okay. And in terms of district commissions, I'm just trying to ask this question as he's representing Schilder. Quick question is, so there are nine district commissions, they have a three active members plus three alternates, is that right? So total six per commission. I think it's four alternates, Mr. Chair. Okay. So is it seven then per district? That is, that's the statutory circumstance, but not necessarily all of those positions are filled. Okay. So of the total, so that would be 63 total district commissioners out there, including alternates. Do you know currently how many we have of the total potential population of 63? I'm sorry, I don't have a number on the top of my head, but it is all listed on the website and the current terms are on our NRB Vermont webpage. Okay. Well, I'm asking me because I have heard over time that at different points it's hard to fill positions or boards may be short of chair for a period of time. That puts a strain on the commission other district chairs, district commission chairs end up substituting in kind of like a traveling judge, I suppose. Do you know if we have other district chairs don't sit in unless that you transfer a project to a different district. Okay. So I don't want you to think it's like, you know, we just make it up because it's a pretty closely monitored process. All right. Well, so obviously I don't know. That's why I'm asking, you know, I just don't, I'm wondering about the staffing level out in the, I don't know, I'm wondering about the staffing level out in the field. Well, I think as I've told you in the past, Mr. Chair, I made it my intention, following up on my long time interest in data that helps us understand what the outcomes really are. And I've continued to pursue that and look at and analyze how many projects come in to each district with what variety of types of projects and what the processing issues are. And I think we have sufficient capacity based on recurring numbers that as we are currently staffed in the district commissions. Okay. Great. Yeah. I've read your report each year. I don't know if you're working on this year's update. It's due and you will receive it shortly. All right. Thank you. Thank you for your patience. Representative Sheldon. Sure. I, I think I'm curious about the volume of applications. I mean, actually chair snowing reminded us we're only adding actually subtracting board members and adding to, to new paid in this proposal. And I, I, one of the previous witnesses today mentioned something like 400 applicants applications coming in a year, 36, six of them were majors. Six were appealed, something like that. And I wonder about the capacity of even a professional board to handle the volume of applications that are coming in. So I really don't see that as a problem. I really think when you consider that three full-time people addressing that workload, it should be possible. And what would their role be in appeals if you were, a lot of your time has taken up already with these, well, the three member board as the administrative board with the same requirements and capacities as the chair currently has this delegated. Right. So you'd actually be here. You'd be, you'd be making decisions in district commissions. And so that's a huge increase. Well, I mean, whatever, I'm sorry. I don't mean to speak out of turn, whatever, you know, is appropriate in that. If the, if the task of the three plus two is to cure major applications, I think that's a good fit between that as time spent and the additional time that's necessary to continue to refine and improve the outcomes. Do you know how many cases the public utility commission hears a year? I don't. Greg, do you know? I don't know the answer to that question. We do hear about 400 applications in a normal year this past year, as we all know, it's not normal in any way. But it was a very steady, you know, flow of work. Thank you. Any other questions for the NRB? Oh, team NRB. Mr. Chair, I'm sorry. I just want to remind you that someone had asked earlier about the precedence of jet, the jurisdictional opinions. And I think Greg was going to just offer a few comments. Great. Thanks very much. Yeah, I think, I think Senator Bray, that might have been something you were thinking about earlier in the morning. I think maybe your question was whether or not jurisdictional opinions as issued by coordinators are precedential. And the answer to that question is no, they're not. Jurisdictional opinions that have been appealed and heard by the Superior Court Environmental Division and the Supreme Court, of course, are are are are presidential, as well as opinions, decisions that were issued by the Informer Environmental Board, those decisions currently hold the same presidential value as decisions that have been issued by the Superior Court Environmental Division. Okay. And how about applications themselves? I mean, the kind of findings and determinations that are made in an application. Do those applications once approved have that sort of presidential value where someone can cite a previously issued application as evidence that whatever measure they're proposing on their project should be considered adequate and therefore be awarded an approval? Sure. So applications issued by district commissions are not themselves presidential. Of course, if an application and a decision issued by the by the district commission is appealed to the Superior Court or then the Supreme Court, those decisions would be presidential. Certainly, it can be argued that decisions issued by district commissions have some persuasive value in other similarly situated cases, but there is no presidential value to those decisions on their own. Okay. Well, and to be direct about it, part of the reason I was asking those questions was to respond to the consistency question where for some folks, they see inconsistency in jurisdictional opinions or the handling of a particular application as a negative feature. Like they are not the same. And other people see it as a positive attribute, namely that the local facts on the ground interpreted by that local district commission led to a judgment that was appropriate for those people at that point in time. And so I don't think there's no perfect right or wrong answer on that one, but I was trying to figure out the consequences of having quote unquote inconsistency in J. O.'s or applications. Cheers, Nellie. Yeah, I just wanted to say that, you know, Senator McCormick mentioned this earlier, but from the very beginning of Act 250, the error or the issue, the topic of inconsistency versus consistency has been heard very loudly. So I just want also to keep in mind what's a continuum of concern versus an active deterrent, if you will, in terms of making the decisions. So I think there's actually more consistency and adherence to the law than you might have reported to you. Okay. Okay. Well, it's truly squeaky complainants are, are noisier than happy customers. Right. Representative Lefebvre, then Representative Dolan. Thank you. My question is, does a natural resource board go to court when there is an appeal on a district commission's decision that they weigh in? I'm sorry, I think I heard the question, the question was, does the natural resources board weigh in on appeals from the district commissions? And yeah, okay. Yeah. So yeah, yes, the natural resources board does at the court. So it goes from district commissions go directly to the court and the natural resources board does typically participate in those appeals. Depending on the questions, the legal issues on appeal, there may be some varying level of participation that the natural resources board feels is appropriate to, you know, depending on, on, on those legal questions. But yes, as a, as it, typically the board will have at least some level of participation in each, in each appeal from the district commission. Do you often side with the commission? I'm sorry, can you review? Yes. Do you often side with the commission? I would say, you know, it's, it's, just if I may, Greg, I mean, that is what I was trying to explain before the decisions of the current chair. Circumstances making those decisions and trying to see what's defensible in court. So there's a, there's a ongoing review of, of where we can succeed. And if we value what might become a precedent. Does that answer your question? Representative. Yes. In light of that, does the, the natural resource board have the authority to hand back a decision to the commissioner and ask them to take another look. No. Negotiate with the commission before the, it winds up in court. I think, I think I'm hearing, does the national resources board have the authority to. Send a decision back to the district commission. And, and no, we don't have, we don't have that sort of authority right now. And I also just wanted to, I wanted to come back to this question of the position that's the, the natural resources board might take at the environmental court and whether or not that position might be consistent or inconsistent with, with the district commission's decision. And this is probably review for most of you. But I think we'll know that the environmental court hears these applications for act 250 permits to Novo, which means that the. Essentially forgets about or doesn't even acknowledge what, what was heard below and, and what the decision of the district commission was, which oftentimes sets up a situation where there's actually. A different set of facts presented. To the environmental court and may have been presented to the district commission. And sometimes those new facts are a result of the district commission's decision. So the applicant may have changed their, may have at least slightly amended their, their project in a manner that would have made their project more amenable to approval by the district commission. So it's, it's sort of difficult for us to say one way or the other, whether we support the district commission's decision, whether we support the district commission's decision or not. But in fact, certain things may have changed in the interim between the application as submitted with the district commission. And that, which was filed with the, and the evidence that's put on during a, an environmental court hearing. Thank you. Sure. Representative Dolan. Thank you. My question is in regards to the consequences. Of the, of the, of the, of the, of the, of the, of the, of the, of the, of the, of the legislation. When we had talked with the secretary. A bit earlier today about this proposal in the executive order. What came up was the cost of. Implementing the executive order. And, and I think it was alluded to in the, in the secretary's remarks that there may be some additional. I think it's important to recognize the NRB to be able to. I think. Manage the change in the most cost-effective manner. Can you describe any thoughts pertaining to that? What additional reorganization is anticipated? Should this executive order come forward? Or move forward. Is there any further discussion? On the time funding. For this year. To support the reorg. And they, it appeared there. It implied that there was some interest to reorganize the NRB even further to be able to find some cost savings. I guess that would be a question for. For Miss. Yeah, I don't, I really don't. I think it's important to recognize the cost savings. I think it's important to recognize as a cost saving. Enterprise. To me, this is about making the decisions be the right decisions. That we need to make. For the state going forward and the balance between the environment and the economy. So it's not about. Saving money because quite honestly, I don't, we can't. lean than we are at the moment. And I say that having just said, I think we have sufficient staffing, which doesn't mean I wouldn't love to contemplate on some what if, you know, there could be others. I would be able to prepare something, but my point is we, how we work now is very lean and the idea is to strengthen the work that we do not to reduce dollars. We don't want to spend any extra though representative. Thank you. Mr. Chair, if I could respond just briefly on that. Sure, please. Thank you. Yeah, Chair Snelling is exactly right. This is about making active 50 work efficiently and well in achieving its mission. But I think what you may be referring to Representative Dolan is there would likely be or maybe some capacity at the district coordinator level for them to participate and help in the staff work on applications. And I would defer to the chair and to Greg on that, but it seems to me that without majors being at the district commission, they would have some potentially some capacity to help out on the processing of those at the board level. And I stand ready to be corrected by Greg or by Chair Snelling on that. Mr. Chair, I would agree. Please. I think if I may. Yes, please. I recall last year and last year's bill. I know this is a new biennium, but since we did spend a significant amount of time thinking about part of this executive order, what's contemplating this executive order. I think at one point we were talking about or there was discussion about reducing the number of district commissions. Is that anticipated as we, if we were to move forward with this executive order? That's not, oh, sorry. Go ahead, Chair. No, go ahead, Lewis. I think we're going to say the same thing, which is no, that's not contemplated in the executive order over time. Would there potentially be some opportunity to have staff assisted at processing applications at the board level? Yes, but that's certainly not part of any discussions I've had. And again, I would defer to the chair. Thank you. Yeah, and I would say that my expectation is that coordinators would assist the board. So on the major applications, there would be a balance. One of the questions that came up this morning from one of the district commissioners was if they are going to participate was a full-time professional board would they be a bit of a spare wheel when they are participating on that board, the three plus two? So are you thinking that they would be paid at the same rate so that they would, in a certain way, I guess be treated professionally in terms of pay so that while they're performing those duties with the other three that they would, instead of the modest daily honorariums, they would be paid. Yeah, no, I absolutely, to me that's an important piece is that what we're trying to do is say this, there's credibility and legitimacy to how these decisions get made. And it's important that the people who are volunteering to bring an important local perspective are being paid at a rate that is comparable to their colleagues on the same panel. I mean, I don't think you wanna create a disparity on who comes from where, based on what they get paid or based what they get paid on where they come from. And I think you could easily look at it as potentially some multiple of how the two board members not the chair, but the two board members, whatever their rate of pay is per hour. So I'm intending to say that as I, that there would be no disparity between the two types of board members. Thank you. Looking for hands, I see Senator McCormick. Thank you, Mr. Chairman. I guess I'm asking this of chair Snelling, but whoever else might wanna answer. The old environmental board was quasi-judicial, but now you act as advocates, you actually intervene. Are you no longer, is the board no longer quasi-judicial? Greg, I think that we retain that authority, but we're not acting on that. Well, I think with respect to, I think it really depends on what feature we're talking about that the natural resources board participates in. If we're talking about the activity that we participate in concerning appeals to the Superior Court Environmental Division, we're certainly not quasi-judicial. We act as any other party might in those proceedings. And is that an advocacy role or an expert role? Well, that's a good question. And I don't know that I'm prepared necessarily to sort of split that hair. The Natural Resources Board decides whether or not and to what extent it might wanna participate in any appeal and will advocate its position one way or the other based on past precedent and law. So to the extent you wanna call it expert advice to the Superior Court or advocacy, I'm not sure how to label it one way or the other. Do you go in on your own initiative or does someone call you as a witness? Okay, no, no, no, we're certainly not witnesses, but yes, the Natural Resources Board will participate on its own initiative. And that authority is delegated from the board to the chair and the chair ultimately decides based on the opinion, based on input from either myself or my colleague, Evan Meenan, as to how we might wanna participate and to what extent we might wanna participate. From time to time, the court may ask the Natural Resources Board for its opinion and may to brief a certain matter, but it's rare that the court would affirmatively ask the board for such a brief. Do you tend to support a balance or to support the commissions? I wouldn't say there was a balance one way or another or a direction one way or another. I think for me, making a decision on whether to represent something and brief the court is about the value of the evidence. And if I feel the evidence is sound and that the decision has been all aspects of the decision have been considered, then I feel it's worth it. But I have been confronted on on numerous occasions with decisions that have opportunities for substantial, you know, criticism and open to a possibility of losing in court and setting a precedent that we don't wanna set. So there's that kind of perspective as well as how do we invest our energy and resources to promote the best precedents of policy going forward and not overexpose ourselves to losing in court. Thank you, Mr. Chairman. Hey, so I didn't wanna interrupt. We've gone past a time where we would have taken a break but I do wanna just take a five minute break and then we'll come back and finish for the morning. While you're making tea or taking a little walk or whatever, let me just float out something for you to think about. And that is what questions, I mean, the committees will handle them individually but what questions do we have and who do we wanna hear from in order to help us get answers to those questions and maybe we can have that discussion when we come back. We'll check in with legislative council to hear their thinking based on what they've heard in testimony today and then we'll wrap up before noon. So let's take a five minute break. See you at 11.37. So let's jump back in. Thank you everyone. So I think we're only gonna go another 10 minutes or so just to finish. Wanted to, we have council with us and I wanted, the two questions I floated out that I think will be helpful for all of us to hear put on one table would be, what questions do we have? And then following up from those, from whom do we need to hear in order to answer those questions? So I'll start with prime to pump with two questions. One is with questions around the constitutionality of the current statute. What's the legislature's usual reaction? I mean, for instance, there must have been laws found unconstitutional and we changed them in the state of Vermont, but nothing has been brought directly to us. There's apparently a case that's been, soup been brought on this already related to it. So I think I'm looking to ledge council to help provide us for guidance. What would our ordinary procedure be to my sense is we would operate under our current understanding of current law until directed otherwise by the courts. So let me put that question on the table and maybe we can get just a brief answer to that. And then I'll let's go around and see if there are other questions floating out there. I don't think we can, I can't hear you, Mr. Martland. No, not yet. Well, Mr. Martland is technology, Mr. Chair. May I just mention that I hope that, you know, if it is determined that it's really only one committee, one body that needs to deal with this that that decision will then be made. And so that both bodies are working on something that they don't need to be working on, if you will. Right. And to your point, there is always the possibility of this proposal being offered as a bill by any member of the General Assembly. So of course, no way that we're precluding a discussion on it, but this is, we've been put into a different posture like the clock running out, et cetera. So, Mr. Martland, let's see if you're... Yes, can you hear me now? Yes, sir. I apologize about that. I had to change the microphone setting. So you were correct, Mr. Chair. The scenario is you have a law on the books that is currently valid. A case has just been filed and may challenge it, but the law is currently valid. It has not been overturned nor has it been stayed. And you will, you should operate under that law and that law clearly states a one-body resolution is sufficient to disapprove this executive order. If this committee or any other committee wants to go into the constitutional issues, we'd be glad to, but I don't think you need to for purposes of considering this executive order. Okay. Thank you. Anyone else in the room have a question that's emerged out of listening to this morning's testimony? Whether we can get an answer right now like that or if it requires research, then we can ask the Ledge Council to come back or others to come back to us in the future. Senator McCormick. Thanks. Luke, were the statute under which we operate to be found unconstitutional? How would that finding affect action that we had previously taken under the now unconstitutional statute? I think it would depend whether the whole chapter is held unconstitutional or only parts thereof. In other words, whether there's a severability analysis applied, so that would be relevant. It also might depend on the court's ruling. So it's hard to predict. I don't know if it would invalidate what you've done. If you pass a resolution disapproving the EO, it doesn't go into effect. And so nothing would change. If you allow the executive order to go into effect and then the statute is held unconstitutional, maybe there would be repercussions but would just have to see. And please remember that we've advised you that if you allow the executive order to go into effect, you should amend other statutes to make sure they conform to the executive order. We want everything to be harmonious. We don't want conflicts between the executive order and statute down the road. I just wanna make sure I've got it. If, hypothetically, and I understand I'm asking for a conjecture, hypothetically, one house disapproves the executive order. The other house remains silent. Under the present statute, that would invalidate the executive order. Were the court later to then decide that that one house provision is unconstitutional? Would the executive order then go into effect? Negative, I do not believe so. It would still be disallowed. Yes. Even though the disallowing was unconstitutional. Yes, and I think we're getting a little far afield. We can talk about this in more detail if you want to go into those issues. But I would think that if the statute is held unconstitutional, the whole statute falls, which includes the mechanism to bring an EO to the general assembly to reorganize the executive branch. Okay, I would hope, Mr. Chairman, maybe not now but I would like to go deeper into this. Hypothetically, were we to decide that we don't like the executive order? I would want us to make sure to err on the side of caution that we did it in a way that would be sustained regardless. Well, two houses would be better than one. Thanks, Mr. Chairman. Thank you. And Representative Dolan and then Representative LeFave. Just a quick question. Is there a difference between an executive order and a bill with respect to the constitutionality issues that were raised? I can see obviously with a bill we the legislature has a constitutional role there with a bicameral to two house approach to passing that bill. But when you're dealing with an executive order is there a, is it treated differently under the whole question of constitutionality? I think that's the crux of the issue. And so once again, we're glad to talk about the constitutional issues. I think there's good arguments on either side but I think there's a gray area there and Representative Dolan that would be one of the key questions is the same bicameral requirement apply or not. But once again, we're sort of backing into this extended conversation. So if you wanna go into it, we can reappear before any committee and go into it in detail. And you can hear from the executive branch but I had the impression that Chair just sort of wanted to lay out issues at this point. So I don't wanna end up going on and on and getting into it in depth that that's okay. Right, so thank you. It's a good question. And well, I think we're obviously a complicated one. So well, the two committees will make decisions about how to dig into this further. Representative Lefebvre. Yes, thank you. Is there any right line that we could go by to determine whether or not an executive order has surpassed a reorganization? Helen, do you wanna take that? I think that's something you touched on earlier. Yeah, so I think the answer is no. I think that reorganization is not defined under the statute 3VSA 2002. And I think there are arguments, there can be multiple arguments made about what falls into that specifically. So there hasn't been any case law further defining it. So we don't have a bright line now. Okay. Thank you. I have a question, Ms. Smith this morning cited, it was an interesting thing she brought up. I think it was Act 246, if I'm remembering, the law that established this ability to reorganize in 3VSA 2002, et cetera, or Chapter 41. And it talked about things like increasing responsiveness to the public, et cetera. Anyway, there were some features in there that they were in findings, I believe, in that original law. And I'm wondering about the, to what degree do the findings of that law influence are they just informational for us, or do they have any kind of legal force? Like do they create in essence a set of criteria against which we could judge the suitability or unsuitability of the proposal currently front of us. Is that a question you want us to answer? Are you throwing that on the table for me? Yeah, I would like to hear from council on that one. I just don't know if how to use that information that's contained in the original legislation that is driving the whole thing today. I think it's something you certainly could look at if you wish. I mean, legislative findings are intended to either give background on why you're passing a bill, why you think it's important, and or how that bill should be interpreted if there's litigation or applied in the real world. So yes, you can absolutely look at legislative findings and sometimes courts look at legislative findings to understand how a bill should be interpreted and applied. So you could look at them. They're not binding. They're not like the substantive codified law that says what people can do or not do. So it's a little different, but you could look at them. Okay, thank you. Also, I would just quickly add, I looked at them. I didn't fully dive deep and spend a lot of time on them, but I did look to see if they clarify reorganization at all. And I did not see at least initially anything further clarifying that aspect. So Ms. Smith was referencing sort of an interesting tie to the citizens of Vermont, which sort of tied into Act 250. And that was sort of a different issue, but I don't think it at least initially didn't strike me as helping further define what is included in reorganization. Okay, thank you. Anyone else have any question you wanna get on the table, whether we're trying to answer it now or just identify some things for us to learn a little more about before when we come back to this? All right, I'm not seeing any other hands and it is title 12, so that was a goal. Representative LeFave. No, fine, thank you. Okay, so with that, I'd just like to say thank you to everyone for participating this morning and deepening the conversation. And I will be in touch with Chair Sheldon and so that we try to keep the two committees a little bit in sync as we work, even though there are individual questions to each committee. So it's good to see you all and thanks for pitching in as a, it was a perfect opportunity to have a joint meeting. So thank you again.