 Good morning and welcome to the House Environment Energy Committee. This morning we are going to continue taking testimony on H687 and here for Molly Mahar, the Ski Rays Association. Welcome. Thank you. Good morning. Thank you to Chair Sheldon, Vice Chair Sebelia, and to the committee for giving me some time to speak to you on H687 this morning. My name is Molly Mahar. I am President of the Vermont Ski Rays Association. We are a private or non-profit trade association representing 21 Alpine and 27 cross country ski areas across Vermont. And ski areas are a major economic driver and employer in their rural communities where most of them are located. Skiing is also an important part of the state's outdoor recreation, tourism, heritage, and culture. And ski areas have successfully conserved and protected lands through master planning and careful management to benefit our state. It's natural resources and the environment over many decades. And I know you were hearing about critical resource areas yesterday and my testimony is more focused on force blocks and connecting habitat and how that will affect the ski areas. So I just wanted to make that distinction. So ski areas are part of Vermont's working landscape and they're stewards of the land. Their managers take this responsibility very seriously and spend millions of dollars in planning and permitting to accomplish this to support the state's recreation economy. We celebrated outdoor recreation day last Friday and it brings many benefits to Vermonters and to our state, body of life, physical and mental well-being, and important driver to help keep our rural economies vibrant. It's also a gateway for Vermonters and to understand why the environment needs to be protected and ski areas strive to manage that environment properly and well. So people will continue to visit in the capacity to support and promote outdoor recreation will be enhanced. We understand that our outdoor recreation economy depends on a healthy and thriving environment. Now Act 250 governs the use, development, management and protection of lands where ski areas operate and often other state and federal land use policies govern their management as well. Ski areas as a result of Act 250 and the A&R permit conditions that guide how ski areas are operated have successfully managed lands in harmony with the goals of A&R and in support of the land, plant and wildlife resources we seek to protect. And master planning is a lengthy and expensive process for ski areas, but it's a proactive way for them to increase their certainty by creating a framework to ensure that they, their local communities, the region and the state all have a vision and agree on the goals and preferred outcomes. Efficiency and predictability of the permitting process are very important because as we've heard many times, time is money. Ski areas must line up the capital resources and complete the permitting processes in a similar timeframe to then schedule project work in what are often very short construction windows due to weather and permit conditions. So now I'll speak a little bit about forest fragmentation and connecting habitat. And this testimony I just wanted to note is consistent with earlier testimony we've offered when these criteria have been considered in the past. And while we see significant, significant potential issues for ski areas with the addition of forest blocks and connecting habitat review criteria in Under Act 250, a successful outcome would ensure the appropriate long term protection of forest resources in Vermont while recognizing the importance of the investments made by ski areas as well. H687 would amend Act 250 to prohibit development in forest blocks or connecting habitat areas unless fragmentation of such areas is avoided or sufficiently mitigated. Forest blocks and connecting habitat comprise over 72% of land area in Vermont and ANR mapping as of last August and I understand that they have completed some new mapping now. But I don't think this is likely to change shows that most lands at ski areas are within the highest priority forest blocks and the highest priority connectivity blocks. And as a result, these new criteria would create tremendous uncertainty for ski areas and could result in the application of these criteria in areas that are already developed and within ski areas existing boundaries as well as a prohibition on new or upgraded ski lifts, trails and other facilities at existing ski areas, which is not our understanding of the intent. The proposed definitions of connecting habitat forest block are overly broad and some of the elements of significance and some elements of significance and size threshold should be applied to forest blocks and habitat. Existing ski area infrastructure, including trails, lifts, work roads and existing golf courses should be included under allowed uses. We'd like to see a buffer of at least one quarter mile surrounding existing ski area boundaries within which these new criteria would not be applied. I also wanted to note that the mitigation compensation multiplier of times three will have an outside impact on the ski industry and could drive project costs to be prohibitively expensive. We need to be protective while not prohibiting a thriving outdoor industry. We understand that the NRB and ANR rulemaking process is designed to create greater specificity around these definitions. Prior to that process, we believe that two things are critical to have updated maps to provide more accurate depictions of forest cover and land features. And number two, to convene a robust and meaningful process to bring together a broad range of stakeholders to determine how to further identify and define the location size significance of the forest blocks, connecting habitat and particularly the highest priority or tier three areas to develop a draft rule. The current bill specifies just over a year to the final rule proposal, which we believe does not offer adequate time to do this work. And finally, the effective date for the proposed new active 50 criteria should be triggered, we believe by the adoption of the final rule. We think this process is necessary to result in a successful outcome, ensuring the appropriate long-term protection of forest resources in Vermont, also recognizing the importance of investments by ski areas of the state. So that concludes my comments on forest blocks and connecting habitat. And I do have a couple of other comments on governance, but I'll stop there for a minute. Thank you for that. Representative Sebelia has a question. Yes, Molly, will you be providing that testimony and writing for us? Yes, I will. Members have questions on the first part of the testimony? Not seeing any. And I have another minute or two to. OK, great. Thank you. As I said at the outset, the inefficient, consistent and predictable permitting process is very important for ski areas and for other applicants. We agree with the NRB report that a professional board could provide more oversight and guidance to improve accountability, consistency and predictability of the overall process. The board should have rulemaking authority to establish policy to guide district commissions to consistently apply active 50 across the state. The board or the executive directors should also have the authority to develop and implement clear standards and timelines for staff and the board of the or the executive director should have the authority to oversee and ensure that staff are conforming to these standards and timelines. The current board and executive director do not seem to have this authority, which creates a significant gap in oversight and creates a lack of efficiency, timeliness and fairness in the process. We support appeals of active 50 decisions remaining with the environmental court. The new board would have to remain neutral to be able to hear appeals, which would be difficult if they're also managing the process, supporting and advising the district commissions and establishing policy. Environmental court judges bring new top neutrality and the necessary ability to apply the laws to the appeals process. And we recognize that the appeals process has been slow, but this could be solved by giving the court more resources. And then finally, the NRB report also recommended streamlining permitting processes at the state level by having certain and our permits just positively fulfill all or portions of certain active 50 criteria rather than the current rebuttable presumption that they have now. This would allow for public participation in the process without subjecting applicants to multiple rounds of public participation on the same issues, which can negatively affect the efficiency of overall process. And that concludes my remarks. Thanks for your testimony. I guess I'm curious how often are what how often have scary areas ended up in court over an active 50 permits? I would have to get back to you on that question. I think it has happened a couple of times. Used to happen a lot. I think as they've gotten more used to how the criteria work and I also would I think the master planning process helps a lot with that. Can you speak to a little bit about the master planning process and the public engagement that goes along with that? There is a lot of public engagement that goes along with that at the at the local level and as well to the prior question, I think, you know, ski areas are doing a better job at doing sort of a pre-scoping exercise with the public to try to flush out what some of the issues may be so that they can change those in their in their proposals as they go forward. But there is a lot of public engagement when they're putting their master plan together, which gives them sort of the framework for what their individual projects may be and it just makes those projects a lot easier to move through the process when it's within that framework. You know, Killington's doing a pretty big upgrade right now. Prior to this, what who else is like when's the last time a kind of a new area was added to serve a new lift was added? Those are regularly replaced. I think the last new one was probably Jackson Gore at Opimo. I don't have the year of that off the top of my head but it was a while ago. Yes. Any further questions? Thank you. Oh, Representative Stebbins. Just curious, I mean it's how the businesses are doing and what they're seeing in terms of such little snow and rain. And then, yeah, it's challenging. Ski areas have been working hard on their operational efficiencies, particularly when it comes to snow making. And we are leaders in the industry here in this state in terms of, you know, being able to work with efficiency Vermont on that type of thing. But it is challenging for sure. You know, we, I feel like we haven't seen a lot of changes until like really the last five years, I feel like we've really seen market changes. And while it's not really shrinking the, because of snow making, we're not shrinking the length of our season but, you know, we're certainly having to rely on it a lot more to get through some of these, the inconsistency of of the weather. So, you know, it was a tough start. I mean, the start of the season was quite good until Christmas when we had that, you know, all that flooding rain, which was horrible. And then, you know, it's been the holiday times until we're challenging up until this week, we actually got some new snow in front of this week, which is a big week for our ski area. So we're hopeful that, you know, we'll see some more snow as we head into March. Typically, March is a good snowy season, although I'll note the weather at the beginning of February really seemed a lot like March weather to me, you know, those sunny days and the cold nights and which is great. I love March, but not in, not in the beginning of February. So, so thank you for asking that question. It's, yeah, it's been a challenging year, but I'm hoping that the law of averages will give us a good, good finish. Representative Sebelia? Well, with climate change and more water, we are seeing more frequently, more frequent damaging impacts, particularly in, well, just everywhere, which where I live can be really overwhelming for for our rural communities. One of the things that I have noticed, and I'm not sure that the committee appreciates, is the role actually that these huge institutions end up playing sometimes in their communities. And I don't know if you want to speak to you know, speak to any examples throughout the state. Sure. Ski areas are a bit unique in that they have a lot of different pieces of equipment and a lot of staff with differing skill sets. And, you know, they certainly often have heavy equipment and things like that. So, they are able to help their communities recover, you know, clear roads, house people that may be displaced because of flooding. We saw that happen last July with Smuggler's Notch in particular. They were able to get some folks out at Johnson and Cambridge and get them up to the ski area, provide transportation and then, you know, and put them up while that was all unfolding. You know, ski areas are integral parts of their communities and they exist because of their communities. And so, you know, they certainly like to give back and to help, you know, whenever they, whenever they can, especially when we're having situation like the drastic flooding. I mean, you saw what happened in Ludlow this past July. And fortunately, there are only a handful of ski areas that were negatively impacted and ski towns. It could have been worse, but it was still pretty bad. I have experienced it multiple times in my region, including this July with some of my communities that were some of our folks were damaged. We saw that Stratman found a defend coming out to help folks always. During Irene, saw housing of National Guard and others sometimes we don't realize the role that institutions of this size play in places where there are huge gaps and capacity and isolation. So make sure we connect to all of them. That's representative Tori. Thank you, Molly. Just a quick question for you about summer and some of the offerings that you're starting to see as ski areas outside of skiing. Uh-huh. You know, Sugarbush has pretty robust offerings in the center. Are you seeing trends like that? Yes. State? Absolutely. Yeah. Yeah, ski areas the winter will continue to be the lion's share of revenue opportunity, but we're starting to see the portion that summer plays increasing. And I think it's important for ski areas to be able to have sort of that critical mass of family activities that can keep a family there for a day or a couple of days. Certainly seeing the resurgence of mountain biking and several of our ski areas like Sugarbush, like Killington, Mount Snow. Have made great strides in becoming mountain biking destinations in there. It's changed a little bit, though, in terms of it's not just the downhill, you know, total adrenaline. There's more building of cross-country trails, more trails for families to be able to experience it as a lifestyle sport, much like skiing is. So yeah, the ski areas are very focused on summer development. And they also post, you know, weddings and corporate gatherings and things like that. So that's a big part of their summer business, too. Or many of their, many of the ski areas sell our business. Thanks again. Thanks. You all might our Legislative Council, Ellen Tchaikowski. Good morning. Ellen Tchaikowski, Office of Legislative Council. Today I am here on draft 4.1 of the Struggle Amendment to H687. Yes, Madam Chair. 4.1 coming front. I don't believe we've had a committee discussion about 3.1. 4.1 is coming from work that followed up on, well, we walked through the last 40 pages of 3.1 the end of last week, Thursday, I think. And then the language that was incorporated in those 40 pages over the weekend was worked on by some of the proposers of it. Charlie is Baker and Chris Cochran and Seth that try to mesh it more fully into draft 3.1. And that is primarily those are the changes you'll see is just to make it line up better than it did. So I would just note, Madam Chair, I appreciate work happening outside committee. I would also note that I'm working really hard outside of committee and I spent a significant amount of time transferring my notes and concerns and questions from 2.1, which we didn't discuss as committed to 3.1 all the weekend yesterday. And now we have a new draft. And so I'm not challenging to follow along. So I'm not sure how to handle that this morning. Personally, I would appreciate maybe 15 minutes to again kind of look through my notes, which are extensive on 3.1 and transfer them to 4.1 so that I could come along with with Ledge Council. I'm not really sure how to follow along. I'm two bills at the same time. These are pretty big. So I'm looking for some help and guys have be productive in this manner. I think I mean what we really what was what was clear after we went through 3.1 was that it didn't match. And this is really just excuse me. Representative Baumgart it's clear to everybody. Did we have a committee discussion that I missed? Maybe because we did go through those 40 pages. I was here for the going through the 40 pages, but I'm just really challenging. I see that there's changes throughout the bill. So and I understand how that can happen. It's just hard to keep up so that we can be productive with a bill of this size. Excuse me. A little break. I'll catch up time. Well I think I would say it's pretty common practice that we look at changes as they are coming in and a lot of the yellow that you're seeing is yellow carried over from 3.1 that we didn't get to talking about on Thursday because we were focused on the addition of the last 40 pages. So I guess I would like to use our time with Legislative Council to look at those. Okay. And so then may I follow up and ask Madam Chair are we just to hear from Legislative Council on the changes at this point and then come back to a committee discussion on this? No. It's anticipated that we'll have some committee discussion today. With that we'll start walking through it. Yes. One more question Madam Chair. So will we as I mentioned will we be taking questions as Alan has walking through the bill or are we to wait until she has gone through to walk through? We can discuss as we go through it. Yeah. And so I am scheduled the rest of the morning and tomorrow morning. I don't know if you're anticipating another draft by tomorrow or if that this will carry over through until tomorrow. So yes. So nearly all the language that's in so on Thursday I did walk through changes that were being proposed by the Department of Housing Committee Development on updates to the designated area program which is the last 40 pages of that bill, the bill. So they responded I think to some of the confusion in the language from Thursday and worked with that members of APTA to provide some edits to that which is primarily what is in yellow today. So I wasn't I'm not sure if that if they're document with that was sent to the committee directly but that's what I was working from. So on page one they are also they're proposing to add a reference to 24 vs a 40 302 to the session law purpose section of this bill. You haven't talked about this this in a while so you and the bill has grown significantly since this was drafted so you may want to review all the language in this section at some point. I'm not sure if you want to add this reference to 4302 in the first sentence. So yes here what it is the 4302 is the goal section of chapter 117 the regional and municipal planning chapter that most of the work is being done in in the later half of the bill. So the first sentence now reads the purpose of this act is to further assist the state in achieving the conservation visioning goals or the state established in 10 vs a 2802 and that's the 30 by 30 50 by 50 and 24 vs a 40 302 which are the municipal and regional planning goals of chapter 117. So are we taking comments or questions or so in section one in purpose. The last line on 4.1 on line 21. I want to flag hearing appeals as something that I'm opposed to. So the next change is on page 5. So this is on the if we're marking up I have questions on page 2. So you would like to proceed manager questions like through the bell or sure for now let's hear them on 4.1 lines 6 and 7. The sentence the structure established under this act would be used to guide financial investment and infrastructure. I don't know what that means. Sure. So there are a lot of changes being made here to the the active 50 jurisdictional triggers that are intended to encourage development in certain areas and discourage development certain areas development which is sort of inherently tied to financial investment and infrastructure or there's a there's an inference that there is a tie. Representative bond guards actually originally request this sentence. So I don't know if you want to Well I think the whole with the way the future land use maps and kind of what it was about is intended to also help end the issues of of the destination over my that's really about helping to guide state investments. So we go to the areas where we've identified as the place where we want that to happen. So I would like to flag this as an area where I would like to see more specificity or this struck. Section 2 Section 2 I believe we are citing we are talking about construction and we are citing the 30 by 30 goals here and conservation. I'd like to suppose in section 2 that we add in language and purpose language that talks about protecting and conserving the environment while supporting equitable access to critical infrastructure. Electric lines, transmission, water, wastewater and telecom. That's it for me on page 2. Page 3. Is every just discussing that or you have two members have any discussion on that? It's the only reference to that bill so I'm not sure it would become the only reference telecom. So it's certainly also intend to add in moving the sunset or moving electric lines out of the woods other critical infrastructure. Thank you. Okay I mean I think if you have we'll keep track and we'll see how it all fits together. That's which is still working on big pieces together. Do you have more before page 5? Thank you. So on page 5 there's a sentence highlighted in yellow. This was proposed by representative bond guards. So you are updating the structure of the board in this in the first 20 pages of this bill and this is language that you have passed previously but one thing that representative bond guards pointed out is that currently the board has alternates to it so that there are members but then if someone is unable to serve there are alternates that are also appointed. You have struck the use of alternates because this will be a semi-professional or the professional but part-time board and so there's language added on page 5 that says if necessary to achieve a quorum the chair of the board may appoint a member of a district commission to sit on a specific case before the board. I think with any luck it will not happen. If there's three is it quorum but I just wanted to thinking about the perspective of the applicant for some reason that I can't imagine what it would be but a couple get conflicted out one is sick or whatever don't want to have some mechanism for the process move forward. And so I think just allowing the chair to appoint somebody from the commission to sit in for that case would be. To be three people would be unavailable. Yeah I mean it's with any luck it will never happen but if you're an applicant it would be representative Smith. Can the chair appoint thank you can the chair appoint anybody they want in lieu of somebody being out like his neighbor or her neighbor no that has to be district commission somebody. Okay yeah. Presenting students are there any risks to this I mean seems reasonable to me. The only thing I thought of is you you may want to specify that it shouldn't be the board will be hearing appeals. So you may want to I mean I think the chair would know but you wouldn't want to appoint a district commissioner who just issued that decision and then have them serve it on that appeal right. So that seems pretty obvious but I don't so I don't know if you want to add that that's the only thing I sort of that came to me on this. Yes. Representative Sibley so just making sure we're talking about the reconfigured environmental review board here and so this sentence is necessary if that board were to hear appeals if that board was not to hear appeals would this sentence be necessary? Potentially because you are giving them a list of other things to do so if for some reason they weren't hearing appeals they're also here given the authority to review the regional plans the maps and then the designations. So this does not this is for any official action they would take not specifically to appeals. Okay. Okay. Great. Thank you. Okay. Thank you. No. Do if this is not related to appeals it's related to other information such as the regional planning commission maps etc etc this could happen over multiple days or multiple meetings. So if a person was appointed would they and then the next meeting they had a full form of the ERB would they drop out? So I phrased it as a specific case before the board and so they would be locked in for that case because potentially yeah depending on how they sort of structure their time I don't know if they'll be hearing like multiple issues in the same day necessarily but if you think about the idea that someone would be conflicted out because they had maybe worked on a case or had an interest in something you would want a replacement to be sitting in from that whole case where they were conflicted out and then with I don't know how long regional plan approvals are going to take over time and so I think though that the phrase specific case still works or it could be specific issue project I mean but yes I have phrased it as a specific something as opposed to like number of days I'm going to retire judge here as a case they hear the whole thing or seems seems like a little it's belt and suspenders on a very unlikely scenario so yeah we could so then the next change is on page nine that is to be I love I'm just reading right I do want to just point out for the audience that section four this bill is 6032 at some point at the end oh so it's also just to say 4.1 has not been through the editors so excuse any typos but also at some point I will need to align all the section numbers because new sections are added in the regional plan sections and so section 632 6032 is the section that holds environmental review or nominated committee and then also you're going to have new sections related to the process for designation approval and so I'm going to line up all those section numbers at the end but I think I've been trying to keep them consistent but and just in case that I have I have bolded them in the later sections where they need to make sure that I want I need to make sure they align so so on pay at the bottom of page nine into page 10 in the rule making section or the the statutory rule making provisions the NRB already has authority to adopt rules and then you also are giving them specific direction to adopt rules of procedure for their new cases but there's been a proposal which we I think talked about a little bit last week from the planners that instead of rules that there be guidance for the procedure so at the bottom of page nine line 20 the board's procedure for approving regional plans and regional plan maps which may be adopted as rules or issued as guidance shall ensure that the maps are consistent with legislative intent so I can't I can't remember if you've heard if you heard specifically from or if I've just been you just help us understand that there's been rules and guidance so rulemaking is a pretty formal procedure established in statute of all the steps that a body needs to take to adopt rules that it does typically take eight to twelve months to adopt rules formally more as guidance does not have that same stricture and can be issued fairly quickly by an agency would rules be more obligatory well in this instance it's an interesting question because this is for the procedure so it's the board's own process and this is kind of an an unusual so I don't so the only thing I can think of off the top of my head so right now I don't think the state downtown board has for how they approve designations I think they just have a guidance first like a procedure in guidance so this is a similar parallel situation where it's review of something and the procedure for how that review and approval happens so I think it could happen through guidance rules are definitely more formal and have a defined sort of public process element and review by Elkar and therefore take much much longer to do you could structure it with interim guidance if you want until they adopted rules formally but that guidance definitely happens much more quickly and can happen sort of at the agency's discretion so guidance my question is really around consistency over time and so guidance could be changed week by week we could get different guidance this month and then next month and then the month after that without any kind of public engagement process or formal process yes and why was this added sorry the planners requested that there potentially wouldn't be time to can I can I Charlie Baker yeah sorry for the records Charlie Baker yeah the Vermont Association Planning Development Agencies I think in our testimony I think last week two weeks ago I can't remember now but we were kind of requesting this because we felt like the statute was clear enough so that's really when you use guidance when there's enough detail in statute that you don't need to defer the rules to rulemaking the rules are in statute and that's how the downtown program works now that's how the regional plan process works now and that's why we're giving you a lot of detail about what the future land use areas are how they're described and the criteria so that there's enough definition in statute that hopefully rules aren't needed but I think there's a May statement here so I think it kind of depends on how specific statute perhaps is thought of so I would like to flag this here issued guidance one of the things that I'm really looking for is improved significantly improved consistency throughout the state and so I'm not really comfortable with guidance at this point I want to see other process it's just guidance is used agency housing community development uses it and it's helpful and it's it's able to it's a tool to help communities know what's going on because otherwise it can the rulemaking process can take a long time and guidance has its role so I think usually it's a it's a constructive helpful tool to make the wheels turn properly so we just need to when we get to can decide if the statute's clear enough and come back guidance or rules rules are necessary for the procedures of and I'll just quickly clarify something I just said so there the administrative procedure act does have a statute on issuing guidance and so it doesn't require the same formal steps as rulemaking but it does require that an agency publicly maintain their guidance documents and that they update at them with any changes or deletions and that they're indexed and recorded and dated that they publish these on their website and make them available to the public and so there is some statutory guidance on there's some statutory information on how an agency should adopt guidance and how they have to maintain it but it is not nearly as formal as rulemaking represents some thanks so I'm sure I guess formal I understand that I mean rulemaking is a big long process so I can understand if the statute is specific enough why you could just use guidance but going to the public process piece I mean if an agency posts something on their website that is not necessarily really communicating to the communities that may or may not be impacted so my question is does guidance I guess I'm not as concerned about the formality but does it have a level of public process to it yeah okay I'm sure I would love to see at some point how we could talk through the public process piece in this bill where it fits how it fits how it relates to what A&R is already doing yada yada at some point yeah I mean I think that needs to we need to talk it through I thought we were walking through it but I just lost my turn so the board that we're standing up is subject to the open meeting law correct yes but they will be a quasi-judicial board and so they will have the ability to go into executive session for private discussion on their just deliberations deliberations on everything or appeals or I think just appeals so things like this they would have to do an open discussion establishing their procedures hmm um I don't know that's it I'd like to know the open meeting laws application to the board as we've established it here civilian yeah following up on Representative Stevens comments your preference dealing with these I have a dozen plus at this point comments about the overall general things that I want to see in the bill do you want us to fold so I haven't incorporated those into specific places in the bill and they're kind of overall big picture things do you want that to be held till the end do you want those now as so we can think about them as we're going through can you bring them up when they're relevant they're kind of overall process pieces so I can try to as I said before it's been really difficult to kind of grapple with this bill yeah well if they and then we can do it at the end if they haven't come up all right so then the next change is jumping all the way to page 37 each on page 12 or not to change but it comments on page let's make sure it's 12 six page it's page 13 under page so this is talking about this is changing the types of appeals that the natural resource board would hear I think previously it was they may hear appeals on fee refund requests and we've changed this around decisions and so I probably will not be consistent throughout the bill and identifying all of the places where appeals but I would say again here I would be opposed to this change and post to moving appeals at this time to the board 13 under J it's still 13 under J oh yeah and sorry I inverted J and K to be more logical so the language hasn't changed but J was planned growth areas and K was regional plans and so I swapped those because the regional plan review would probably happen before the growth area so in J then my question is what is the and just another general comment so we had highlight in version 2.1 that didn't carry to 3.1 we have highlighted 3.1 that hasn't carried to 4.1 and so we're kind of losing the changes as we go and haven't had committee discussion so I'm trying to that's another reason why I'm trying to incorporate my comments here so between regional plans and the future land use maps I'm not clear on the difference between those two things so a regional plan contains the maps the maps are part of the plan and 24 43 48 a is the statute that establishes what elements are required and that language is included later in the bill so this is saying that the board is going to look at the regional plan make sure it complies with the elements that are required in a regional plan and the future land use maps which is a proposal within this bill so the regional plan maps already exist and already are a required component and say our discussed the elements for both of those things are discussed in 43, 48 so yes the board would review for compliance with the future land use maps already exist yes so this is transferring who did this before who reviewed this for compliance before nobody if we're going to be going to page 37 next comment around the definition of forest for example page 36 let's talk about that now let's see if anyone has a comment before that it's yours on page 35 37 okay yes anyone do I hear anything before page 35 how did you get there yes page 34 is transition religion authority section 15 it was page 34 so I would just like to come back to this section section 15 yeah okay so I support transitioning to a professional board and not the appeals so I just want to make sure that we if if the committee goes with something that is a hybrid of those two some slides that we have that properly staffed I don't know if you didn't have appeals please still turn so I said I want to hear from Anthony 80% of secuits yes so when I was looking at the definition of forest block so it's still on page you know on page 36 line 6 found myself really struggling to have a good sense of what this is really meaning like in front of you so I did a little bit of research and I found out that fairly recently ANR has also had some trouble with the term forest block as has been used in some other recent documents and so they came up with a recommendation in a different context to address concern over how to interpret the term forest block and we also found a definition of forest block in Vermont conservation design and one of the things that ANR had also proposed is to define forest blocks using a definition that the US Forest Service uses and to sort of cut to the chase site I sort of put a couple of these things together with the intention that is in the bill to come up with a new definition which I think would be a little more clear and detailed do you like me to read that to the committee so my definition would read as forest blocks are areas of contiguous forest land and also may include other natural communities and habitats such as wetlands, ponds and city and cliffs forest land is land at least 10% occupied by forest trees of any size or formerly having had such tree cover and not currently developed for non forest use lands developed for non forest use include areas for crops prove pasture residential or administrative areas improve roads of any width and adjoining road clearing and power line clearing of any width forest blocks may include recreational trails so that's the definition that I came up with which I can send to Ellen if it seems like that's a good idea and I also in terms of thinking about this definition can I just ask a little history on the definition because we've used it in the past in statute and can you just remind us where else we've already codified the definition for this block so I don't know if there's like 171 or we is that the in title 24 chapter 117 there is a requirement that municipalities include forest blocks on their town maps and so I don't know if there are any other statutory definitions the definition that's in the bill currently was the definition that came from the discussion in 30 sessions of the H233 language that this committee has passed out before and so in in title 24 section 4303 forest block means a continuous area of forest in any stage of succession and not currently developed for non forest use a forest block may include recreational trails could understand a forest block could mean anywhere from a five acre parcel if you've got a forest block and it's 800 acres shouldn't it specify maybe in a parentheses of some sort that this forest block that is being discussed is 800 acres or 1200 acres or 60 acres so that everybody would understand what a forest block is so I got distracted by a technological blip can you just say the very beginning of your point I don't know if I can I think you're talking about minimum size are you like setting a 20 acre minimum size so there's no specification on minimum size here I think people should know what a forest block is you know if there's going to be a discussion about an act 250 incident or whatever that may arise I think the person outside of the area of act 250 that doesn't know a lot about it should know what a forest block is in a simple explanation am I right or wrong so I will just say language has been added a couple pages ahead of this to direct the NRB to set a minimum size in the rule so that's one way to do it representative Sackowitz I was just going to see if I could find it quickly but do you know if when A&R I think you were referring to the PUC rulemaking when A&R was looking at the definition of a forest block do you know if they had a minimum size the PUC rulemaking established that clearing of more than three acres of forest was a significant impact so I was wondering though if they set the minimum size of the forest block that would be that would be clear did you know that's my class something like that okay not that it's not fair right yeah so I don't know either off the top of my head if they did include that that's in the net metering but I can I can look and see if they did kind of Stebbins then Sebelia that's what I'm sure representative Sackowitz as someone who needs a little more time you thank you for reading it slowly but first still it was one time narrative can you explain a little bit more specifically how your proposed language clarifies more fully than what's here like where the differences are just so I can understand that yeah can I just ask my question because I think it builds off of this which is we're referencing number 46 right the definition yeah okay I well I guess there was there was two two parts almost that I found myself reading the definition and not being going to have a very clear sense of like that what we were really talking about not specifically not in as much detail as I would like and then and then again then the other part would be the detail it might the definition that I'm proposing has more detail as as to what words what we're referring to so I guess there'd be those those two parts just the phrasing of it and also and structure and the amount of detail it goes into in terms of defining what a forest block would actually be so I'm going to ask if you would just email that to the committee and we can then I'll have some time with it and look at it more closely Representative Sibilia that was to be my request Ellen where's the rulemaking that you mentioned is that coming up in through um so oh yes it's um you know it's on page 40 so we'll get to it yeah so on page 37 so second 20 is amending the active 50 criteria to add a new criteria for forest blocks and habitat connectors um and so it's adding a it's adding a subsection heading to criterion 8 so first you have a choice here because currently only some of the active 50 criteria have headings so the editors would prefer either all head headings or nonhead headings um so you can either strike the language on section on line six it's like or you can leave it and then also representative bond guards suggest it previously read ecosystem protection and so really attention it's what's that not really my protection after our conversation like it's a almost an extension of it it's that's something that well so I don't know if you want to so there he proposed suggest changing it to ecosystem functionality I wasn't I was not clear if that was a requested change or not so it's highlighted here you can either strike the whole thing you can put it back to ecosystem protection you can make it forest blocks habitat connectors it's just supposed to be for reading assistance now it is not usually how we refer to it I hope should and I'm not sure if I can anyone protection spot if that's okay representative so this is more overarching meant so sections 19 and 20 I would want us to look at in the context of a much broader implementation discussion timeline which is a broad comment than I am that have this work will be done so okay so related to when it might go into effect into me so I would say we just leave it ecosystem protection and move on all right and so then on page 39 this is um potentially not a substantive change but previously criterion 8c was connecting habitat as a protection from fragmentation of connecting habitat title 24 I was reminded uses the phrase habitat connector and so again on municipal town maps you are they are required to map forest blocks and habitat connectors and so having the consistent terms probably makes sense so I changed the phrase from connecting habitat to habitat connector that much easier for people understand makes sense although I think also this this is where we should talk I think consistency is a good idea between these sections or something on this but I also think this is where we need to have the conversation about testimony we've taken on undo ever sure looking for that language right now so on pages 30 and 39 uh there are two new criteria forest blocks is 8b and habitat connector is 8c forest block fragmentation requires avoid minimize mitigate and for habitat connector fragmentation it is just avoid or minimize fragmentation no mitigation option we've taken some testimony kind of in both directions but now I wish if you could help the committee understand the legal difference and then how our words affect those what we're doing right now oh I wish you were me I did a a PowerPoint on this last year maybe I could warn you so I do have a PowerPoint that I have done because we've had this conversation every year so there are eight there are 10 criteria of Act 250 they all use they use a few different phrases to establish what an applicant needs to demonstrate in their application many of them use undo adverse impact some of them also use unreasonable as to what the impact is going to be but then also there is a standard in 9b related to the protection of primary agricultural soils that sets up a different standard which is avoid minimize mitigate so currently under the other parts of criterion 8 it does use undo adverse impact which is undo adverse effect sorry undo adverse effect which there is court precedent on how to interpret that so it's a two-step initial assessment which is is there going to be an adverse effect on the resource and is it undo so it does allow for initially some adverse effect to happen but there is then the question of whether or not there is that impact is undo and so whether or not it's too much and so whether or not the applicant has taken any steps to reduce that adverse effect so I'm doing this all from memory I can get you more specific information on how that is evaluated and how it's been reviewed by the courts but that is a two-step where some adverse effect is allowed but there has to be it can't be too much and there has to be steps taken to reduce it avoid minimize mitigate is a much more sort of specific standard that has steps in how the applicant needs to demonstrate they are addressing the negative impact they're having on the resource and so it is currently used for primary agricultural soils and so it does say first the applicant must demonstrate that they will avoid the negative impact and then only if they're unable to avoid it that they then seek to minimize the adverse impact they're having and if they can't minimize it then they are allowed to mitigate that impact either by conserving something elsewhere or paying a fee that would lead to the conservation of the resource elsewhere so it is a slightly different analysis and it does provide more information I think in some ways of what the applicant actually has to do in their application to demonstrate how they're seeking to reduce their harm on the resource so that's to do so just making sure that I'm clear habitat connectors we have avoid and minimize and forest blocks we have avoid minimize and mitigate and so how big is a habitat connector so like forest blocks you don't set a minimum size and you could seek to do that if you want so I don't I literally don't know like how big that could be is it a trail size is it like acres I mean I don't understand what the scale of a habitat connector you might have hit the lower and upper boundaries but so the one thing I'm sorry I just want to go back to the structure and the difference that we're doing right this second so undue adverse effect criterion eight has that now for a and the interaction between statement in line seven undue adverse effect on page 37 the interaction of what we now how does it interact we now have avoid minimize mitigate and be how does legally kind of intertwine well so as with all the other act 250 criteria there are 10 but there aren't really 10 there's 32 so that paragraph has been interpreted to be separate specifically from actually 8a which is necessary wildlife so so undue adverse effect is actually not even guiding 8a correct what does it guide in this instance but it's seen in your natural beauty aesthetics historic sites rare in your place well natural areas so 8a is significantly just destroy or significantly apparel yes yeah and so that's a different structure also because that also provides steps on analysis similar to the steps you described previously so yeah it's still a little bit different it's a little bit different too for evaluating that okay so yeah sure although I am not really as well versed in necessary wildlife but so the party has to demonstrate that they will not destroy or significantly imparel necessary wildlife habitat and the economic social cultural recreational or other benefit to the public from the development will not outweigh economic environmental or recreational loss to the public from the destruction or impairment all feasible or reasonable means of preventing or lessening the destruction diminution or impairment of the habitat or species has not been or will not continue to be applied or a reasonably acceptable alternative site is owned or controlled by the applicant which would allow the development or subdivision to fulfill its intended purpose so I do think it's a similar sort of analysis ladder as what you're setting up and avoid minimize mitigate but it does involve a bit of benefit analysis because it asks whether there will be if the benefits from the development will outweigh the entitlement of the habitat or species and so I'm actually not as familiar with the case law on this I know there is case law on how you interpret this but I haven't recently reviewed it just a question which is does does the 8a test under small eye you the board can actually deny and can they deny because because they because they get to weigh and they could therefore say no and does the avoid minimize mitigate test or the adverse undue adverse and impact test actually allow denial or is it always shaping as best can be shaped I'm not sure I'm not sure I understand well can avoid minimize mitigate is there just could the board actually deny the permit it's the room within that for the board to deny or does the board after just do the best it can shaping looks like 8a the board actually has the authority the clear authority to deny so I think so because the question would be if the if the applicant got to the mitigation stage and then could not mitigate in under B so you haven't discussed too much but there's language establishing how the mitigation project works which does involve compensation for conserving force blocks elsewhere so if an applicant refused they could deny there that answer your question we can come back up think about it more I want to like have these handful in Vermont another number but a handful of like critical connecting habitats and I just want to make sure that the language can give the board the authority to actually ensure that those that handful of critical connecting habitat is left intact yes so under C you have removed the language regarding the ability to mitigate and so the question the the applicant is asked to demonstrate that they have either avoided fragmentation of a connector or minimized it they will need to provide evidence that they have done something to minimize their fragmentation and so it is a subjective question they are unable to truly minimize because of the size of the project or whatever application nor if we're to go forward it would not be able to minimize what would happen yeah I think authority to say no yeah I think the board will the district commission would have the authority to deny a permit although I am searching do you have a citation for me to look at where Pete Gill executive director for the natural resource board I'll just say it's not one of the criteria where the district commission is unable to deny not one where they are unable to deny okay yes so they may deny us how that will actually play out in those new criteria you know is part of guidance rulemaking etc and and frankly a pillow practice so from where you said we're I think I mean the policy choices that we've been hearing about are whether or not to kind of align the new criteria with the undue adverse impact or stick with avoid minimize mitigate can you help us understand how the board might interpret that now or the district commissions might be interpreting that now yeah so just scrolling through because I don't deal with it on a daily basis in terms of those criteria but I think we'd be happy to come in and talk a little bit more about that that probably be most productive but I will say I mean even within our undue adverse impact standard there are aspects of mitigation within that or minimizing some of the factors that the commissions are looking at when they're applying that so at any rate I'd be happy to get it in more detail but I think we just need to it'd be more productive if we have a little time to prepare that for you okay that would be great like to take up on that offer and I'd like to also do you have something else to say on this topic for a pretend it's not good I've been talking about these terms I'm starting to feel like I don't really know exactly what we mean by especially minimize but also mitigate like if you're minimizing something like how far do you have to minimize it before it counts as minimization and I guess I don't I'm just I feel like it's something that I should have been clear on a long time ago but as we're talking about I'd be like wait what do we really mean about this I'm not sure so you do the one of the things that a benefit of setting up this structure is that it is much more detailed than any of the other criteria that are in Act 250 so if you look at the bottom of page 38 into 39 it does actually provide information on how an applicant can avoid or minimize fragmentation so specifically so methods for avoiding or minimizing fragmentation of a force block may include locating buildings and other improvements and operating the project in a manner that avoids or minimizes incursion into and disturbance of the force block including clustering of buildings and associated improvements designing roads driveways and utilities that serve the development or subdivision to avoid or minimize fragmentation of the force block such design may be accomplished by following or sharing existing features on the land such as roads tree lines stonewall and fence lines and so similar language is added again at the bottom of page 39 for habitat connectors so that includes locating buildings and other improvements at the furthest feasible location from the center of the connector designing the location of buildings or other improvements to leave the greatest contiguous portion of the area undisturbed in order to facilitate wildlife travel through the connector or when there's no feasible site for construction of buildings and other improvements outside the connector designing the buildings and improvements to facilitate the continued viability of the connector for use by wildlife and so I'll also just say like I didn't read through the full language of eye-views criteria today but these criteria are much more detailed than other existing active 50 criteria and I think the intent is to provide applicants with some idea as opposed to a lot of prior criteria I think had to be like litigated to figure out whether or not an applicant had met the standard and so there are examples here provided in the statute that will give them some idea of what they should demonstrate and then some idea for the commission when they're reviewing the application to say okay has the applicant provided us any information about how they structured their site to address this and avoid these impacts so someone comes with in with a big project and it's spread out all over the place and so they then are instructed to minimize and so they then okay they say okay well we can take this project and we can move these buildings a lot closer together and so they've minimized under that definition but perhaps this is still like really big because the original project was really big and it's still having a really large impact but they've met this minimization so how does how does that work then in terms of is this really okay then as they minimize if they're under the force block criterion they would need to mitigate any further fragmentation that they've caused to slight minimize thing okay under the habitat connector if they have been if they've attempted to minimize but still are you know unable to locate it from the center of the connector and are going to fragment the connector they potentially will need to there may be a denial now the district commission does have flexibility to attach permit conditions to permits when they issue them and that is one of the ways that 98 percent of permits get issued is that they say okay you've done this so far but if you were able if we attach this permit condition that says you're not going to do X when you construct that will potentially protect the rest of the connector that may allow the permit to be approved and forward but it will be subjective on how they provide their evidence to the district and whether or not the district commission finds that they actually met the standard so then minimization and these other ways of making the projects better is really more about guidance to lessen the overall impact of a project and not necessarily although the part about whether the permit is actually granted because you can do all these things in a way that the law says but still have an impact which is perceived to be too big and that but then that and what you're saying then is that that analysis has a large subjective component to it well it is fact and site dependent so yeah so I mean currently there's no prohibition on construction in a habitat connector and this also doesn't establish a prohibition on construction but it does ask that consideration be given to that habitat and whether or not there's anything that can be done to limit the adverse impact on it but those things though there's a point which like the district commission could say you know you can't you can't do this I think getting back to what we're talking about so get me yes and I guess I'm trying to figure out how that really works how the district commission then would decide okay despite the guidance of the boy to minimize we still can't do that you can't do this project because you can't come close enough to doing those things so this is a new process that you're establishing I do think when if you were to pass this then it would go to the district commissions I do think A&R would be heavily involved in providing evidence they probably would be involved with an applicant if there was an identified habitat for connector on the property A&R would probably be involved initially consulting with the developer to say hey this is a habitat connector and if you start here you will probably fragment it and that would be a problem under Act 250 here's the information we have on these species here's what you can do and whether or not the applicant that incorporates any of that information and adjusts their application to reflect that would then lead to whether or not A&R I think participated and or opposed the application and then provided that information to the district commission saying here's why we think that they could do more and they haven't so that's how it would work for these new criteria is that basically how it works for existing criteria now so then I guess I just still would have the same questions about like for projects that have happened in say into the recent past that would be working through other criteria are there projects that that get denied because like they've attempted to minimize like they've done as much as they could but then they but they're still very impactful so they're not a good idea given the environment in that location so the only so there's a few different things in that question so one avoid minimize mitigate is currently only used really for agricultural soils so I don't have a ton of background on the number of projects that have been denied solely because they have not mitigated their impacts to agricultural soils I suspect there there is case law on how that's played out and what denials have been but there is a lot of case law on how some other things have played out like I'm thinking of Dear wintering habitat under criterion 8a there have been projects that have been denied because they were building it where there was critical habitat for animals and there was no way to get around it if they were going to move forward with the project so I can't speak in depth to have to some of that at the moment but when you create a new criterion which doesn't happen very often the more detail you provide the less opportunity there is potentially for litigation because I think I'm kind of going off book here but usually when a new criterion has been adopted there hasn't necessarily been a rulemaking associated with it and so there hasn't been as much information and so the NRB has backfilled with guidance to applicants on what kind of things they think would fall by and then the district commission goes to the process of evaluating applications under the new criteria but then a lot of it does come out in litigation so the upside to having the avoid minimize mitigate is that you do provide a lot more detail than some of the other criteria that I've already been established under Act 250 I know Representative Stevens has a questions but we are really due for a break can I say one small thing that I want to just follow up on there is a specific statute 6,087 and this is going back that lists that there are three criteria that a project cannot be solely denied for it's traffic education and municipal services so the other criteria under Act 250 you can have a project denied solely on one of those criteria but traffic education and municipal services a project cannot be denied solely for one of those reasons traffic education and municipal services and I'm wondering if those are also linked to many fees like we just we took some touch my own traffic mitigation fees albeit they're very small were there and I think there used to be education fees paid and I don't know if ever municipal services to help communities offset the impact of those costs there are conditions to address and there is a provision in here that municipalities do weigh in on those criteria and the applicant reach out to the municipalities to ask them about whether or not the project will be negatively impacting them so I don't know if there are anyone over there specific fees but the municipality can weigh in about permit conditions or what would be necessary to not have negative impacts on their systems all right let's take a 10 minute break and come back the quarter but the hearing and continue walking through H637 to have 4.1 with Ellen Czechoski okay so I think we've had a great conversation about this and that we probably need to do a little more thinking on it members have final thoughts on it otherwise I'd say we move on and we hear from the natural research board on other how it's played out past okay and so related to this I mentioned already on page 40 so in addition to setting up the two new criteria 8B and 8C there is also a rulemaking provision and so just to add another topic for consideration this is a pretty short rulemaking section and new language is being added so the the board shall final final proposed rules with Secretary State and Elkar by June 15, 2025 which at a minimum shall address the minimum size required for a force block or habitat connector so you have a lot of options in designing criteria previous iterations that you have considered was doing the avoid minimize doing avoid minimize mitigate and not having a rulemaking or doing undue adverse effect and then having a much more detailed rulemaking directive on what the rules should include and address and this is kind of in between prior additions of new criteria have not necessarily included a rulemaking provision so you have options but the new language is being added here to address a minimum size requirement in the rule and so that would give the board opportunity to have a public process on what the minimum size should be so just making sure I understand what we're doing here so this is the proposed new criterion force blocks and habitat connectors this is the rulemaking that the natural resources board would put into effect in order to implement and so that would be so if we define it what it what is they'll be talking about like what would the rule continue so this is giving specifics on adding the size requirement some other things that could be addressed I'm trying to think there was a much more detailed provision in the last sort of iteration there was more detail in this rulemaking section or in the yeah in prior iterations okay not in your bill but like when you have considered this previously so trying to think back so it could address additional information for applicants on some of the site design elements it could involve additional details of the what these force blocks and habitat connectors the what features they have so if I might I think we left rulemaking in because we knew that we were not exactly you know we didn't know if we were going to do undo that versus impact and then we would really need the rulemaking or if we were going to go and avoid minimize mitigate and can you remind us in the ag mitigation like the ratios does that come from rural the ratios you know it's in statue statue okay yes representative Speedy just general flag here rulemaking will be great to see a timeline and kind of a process map or we'll make new drought bill and yeah I have the same thought I think understanding so this would be the existing natural resources board would do this rulemaking yeah uh sure as as this is drafted yes no and I that was in response to timeline I don't I think I yes can make a timeline if I need one I think we start up on yeah yeah and and then just on that so there's a delayed effective date although I have to fix it but there's a delayed effective date on this provision until the rules are actually drafted so that applicants are aware of what's in the rules so that they can have notice of them before the actual new criteria go into effect where is that an effective date section and so a section so on that point about mitigation so section 22 then sets up the mitigation calculation for forest blocks and it is very similar to the prime agricultural primary agricultural soil statute which is 60 93 I would just flag section 22 also as a kind of broader timeline discussion okay so the next yellow highlighting is on page 45 I'm now on page 41 I'm on line 15 and I have this highlighted on 3.1 I'm assuming that's because it was highlighted on 2.1 and I don't understand just I'll walk through what this is right here so this is this is a mitigation fee yep for forest blocks yes yes okay and this is the calculation of that and is this calculation consistent with other calculations of mitigation fees yeah so currently in section 60 93 which is the primary agricultural soil mitigation statute it is the language is nearly identical the difference here that you're pointing out which is on line 15 is that currently for primary agricultural soil the mitigation ratio is you multiply the number by a mitigation ratio based on the quality of the soil and so it's between 2.1 and 3.1 depending on the quality of the soil is mapped so there isn't necessarily comparable scaling of forest block quality and so there was the the chair just has to make it three as opposed to I think the prior version had said as decided in rule and so just picking the number of three and so the theory here as with the primary agricultural soil mitigation is that if there's going to be destruction or here you know cutting down of a forest block that more should be preserved than what is being lost so somewhere else three acres would be preserved as if one acre is being cut down okay so those funds go to VHCB yeah yeah they go for conservation yes so they're used to purchase other land and conserve it so the more you develop more you can conserve three times as much yes and okay is this kind of oh look like you're questioning that uh so some of this is is tricky because prices so the intent is for you to conserve three times as much it is sort of an open question specifically on it VHCB will be able to purchase exactly three times as much but it is establishing that the amount that would be paid is three times so hopefully they would be able to purchase three times as many acres but it would be sort of going into their their funding do I have a wealthy person from away who wants to develop in a forest block in the amazing market real estate market that is around the ski areas in my region they will have to mitigate at three times the land value in that area yes they go through you would they go through the avoid minimize mitigate and if they get to the mitigation standpoint where they can't fully avoid fragmenting the forest block yes they would be required to pay a fee based on this calculation or minimize right if they if they were yeah so it would you would go through the process and if you got to this stage that they were unable to avoid minimize then they could opt or the district commission would direct them to mitigate which would involve paying a fee based on this calculation this is this is you know really the existing law and process you know I worry about that in terms of people with means and people without means being able to equally access the ability to use land so I just wonder about if the mitigate is the place where that is most potentially pronounced like what is the most caught what what what so be okay I think what would be the most costly of minimize avoid minimize or mitigate what is the most costly who could tell us about that I feel like that goes to my more to my concern a refund like what typically happens I guess the NRB could probably does anybody keep statistics on that what kind of statistics like on on how what is the means of addressing criteria to people typically our applicants typically avoid minimize or mitigate and what is you know and what's the order of magnitude in terms of costs associated with that so just thinking about who can afford to do these things if there's if there's any difference in those three so Peter Gills here do you keep statistics on because currently it would only apply to agricultural soils yeah so we stick in terms of the amount of cultural mitigation fees that were assessed by the district commissions so we could provide that to you certainly district commissions and applicants I think are motivated to minimize their impacts to agricultural soils based on the fact that they would otherwise have to pay a fee for impact to those but I'm not sure that we have you know that compare that you know data does show that comparison which I think is what I'm understanding you're getting at like how any data to show where they've actually minimized their intrusion into those soils I'm not sure that we have that information in some sort of a data point but we can certainly tell it give you the amount that's been assessed my understanding that this is that we don't be this is this okay so there are other factors which were talking about the undue adverse impact that those three and and I'm aware from my region which has ski areas second home developers you know of the ability to kind of purchase your way through a number of the challenges here so that's I'm trying to understand where someone who's had their land for a long time and we may not be a person needs where they are likely to feel where we would try and target some sort of assistance or relief in the process of trying to address the question so these have anyway no flag there page 45 is the road rule page 40 so this has to do with the existing this is adding mapping for forceblocks and connecting habitat section 23 yes then C is talking so establishing and maintaining written procedures for updating the maps why would we say what is the difference between this process and C and rule making why would we do this over rule making for I don't really understand and see the detail of this process so A&R is required to do resource mapping already this because you're adding criteria regarding forceblocks and connect habitat connectors requiring that the maps specifically reflect that would be helpful to the publics that there is some notice based on A&R's information where those are they would not be jurisdictional but relevant and could be used as part of the active 50 process delineating where some of these resources are and then this language predates me because this comes from age 233 when this committee worked on it seven years ago I think there was concern that there needed to be clear written procedures for how A&R was mapping these resources so that there was public information about how that was being done so that it wasn't opaque so I'm not aware of A&R having rule making on how they do their mapping and so I'm not I think they already have existing processes that they use when they do mapping to create the A&R natural resources Atlas for example so I'm not sure if rule is I mean you always have the option to make changes policy changes if you'd like but I think this was an attempt to get at written clear procedures so that people could weigh in also so and then these resource maps of the secretary of A&R is responsible for maintaining procedures for updating them these maps that those resource maps are what we are proposing that the NRB will be required to make sure the plans are compliant with no okay let me understand what this is for then and how it relates to the regional plans and you know raw mapping so it is so these are informational maps there to provide public information on their A&R beliefs that force where the existing natural resources of the state are and so these maps do already exist this section is requiring a little more detail on specifically force blocks and connecting habitat I do think they have already mapped some of this largely I think the A&R natural resource Atlas has a lot of information on it already but it is specifically requiring this additional detail and I think that it would be envisioned as a first step so that the public was aware of where A&R believes that these resources are located but they are not the final say on that because they don't know how fine scale they actually are like how detailed by like property boundary they are and so I think it's intended to be a public informational resource so that people who are starting their application or considering an application would have some information but then would supplement it with the on the ground information that they then have so they're not as we would say jurisdictional and then how they relate to the regional planning maps is an interesting question that I will start to answer but I think maybe better pose to the planners because land use maps are different than natural resource maps but maybe that's all I can say let me follow up then and say that it would be really helpful to me we've talked about there's a number of different types of maps that we do related to conservation design related to 30x30 and 50x50 which are referenced in here related to town plans related to regional plans so what would be really helpful to me is to see some sort of a relationship map about how all of those maps come together and are dealt with in this proposed legislation how they how they are now and how we're proposing to change that in this legislation because I'm not really following how all these maps come together or what's required what's going to mean something you know and I think that could be helpful did you want to ask that question to the regional planning commission yes I will ask that question to the chair as a request of something that I would like to see in this legislation I would like to understand about this legislation yeah I mean duly noted Representative Smith thank you when you talk about mapping are you talking when the state map does the maps are you talking about mapping property lines are you talking about mapping terrain so this specific section is A&Rs maps so they do they do a couple of different ones but this is specific to resource mapping which I think is currently captured in what's called the A&R natural resources atlas they do have a couple of other maps that they use I don't I can't speak specifically to all the elements that they map on it because it's quite a few things that there's and to many different things that they map on it so I'm not sure I suspect terrain is mapped on it so perhaps they're looking more for property who owns the property are they looking more for terrain of the both the terrain doesn't change so it is specific to natural resources which is what the agency itself does have jurisdiction over and so you I mean you may want to just have A&R in here to explain it I think they have been well it's not what they do there so we've taken a lot of testimony on Vermont conservation design those are the large Vermont Atlas the A&R Atlas excuse me is online and available for us today look at yeah it's fun to play with because what my elements of Vermont I just I'm gonna address Representative Sebelia and I think you also in this it's not as complicated I don't think as it may seem when we try to put it in words on the page and so you have this functional landscape that is guided by Vermont conservation design we've used it in previous legislation then you would get to how that natural resource information will inform future land use maps and that is something that the regional planning commissions have asked us for more guidance on how do we want them to use that information in future land use maps and then there are town plan maps and then from there this is sort of a nested set of maps that increase in detail as we go down so we have Vermont conservation design we have future land use maps we have town plan maps then you get to zoning districts that gets way more specific and so they're building on each other and forming is that fair to say I'm asking Charlie Baker Representative the planning commissions here in the room yeah I think that's fair and then when they get into permitting they do field verification yes and and this happens with different resources at different levels of detail now resources that we've been more aware of the one we like to talk about is wetlands mapping but there was some interesting testimony taken yesterday on wetlands mapping and the effectiveness of that program and so just caution us when we use that as a poster child but that's kind of it and I think if you need a graphic for that you can we can draw on but it's just it's that's how these maps are and those are the ones we're referring to generally although we don't get to the level of zoning in this bill we stop at future land use maps really for the regional planning commissions yeah I would love the graphic that'd be great I don't know if we have a graphic designer but we'll we'll can do it for efforts go ahead all right so on page 45 is the road rule the road rule is still highlighted because you didn't discuss it in draft 3.1 it's an absolute yeah I'm intrigued about what we're still highlighting that we haven't discussed in 3.1 but generally in this section of low location based jurisdiction 24, 25, 26, 27, 28 and 29 you know these are part of pretty amount of pages or lines or no sections I shouldn't get sections under location based jurisdiction we have a section by section that Alan gave us just generally speaking both those future land use maps really looking for a broad discussion about implementation and timeline go ahead on timeline no okay all right so I think you you had some testimony on the road rule it's it was proposed in the NRP's report and so the language that he is here is a construct of the road rule that this this all right let me take a step back this committee passed a road rule in one of its prior Act 250 bills and then when it went over to the Senate the Senate spent more time working on that and I believe that was in 2020 or 2021 and so this language is taken from that because the NRB report didn't provide you know specific language on any of these things so this is a prior version of the road rule that has been worked on in the legislature as you continue to work on it I actually have some language tweaks that may be necessary but here's what this current version says so this is a jurisdictional trigger so the construction of a road roads driveway or driveways which in combination is greater than 2000 feet or the construction of any single road or driveway greater than 800 feet to provide access to or within a tract or tracks of land of more than one acre owned or controlled by a person so I'll stop quickly at the NRB report recommended a 2000 foot road 2000 foot road rule I think there have also been conversations about 800 single foot road that's why it's in bold and we should I should maybe come back with additional information but the prior road rule that was repealed in 2001 was an 800 foot road rule so a road rule existed from 1975 to 2002 before it was repealed and it was an 800 foot road rule so the rest of the language I'm going to read through is explaining what is involved in all of this because there's additional information provided and the rest of the highlighted text so online 13 a person is that literally mean person could it be a corporation or like what does that mean the definition of person is used in all the other active 50 jurisdictional triggers and it is defined for active 50 in 6001 but it does include it is more than a natural person I can read it to you if you'd like just let her finish I think it'll I just want to know what a natural person is or a natural person I was being overly simplistic but can I can I get you the definition of person for active okay so it does include more than it doesn't yes partnerships all of that legal definition yeah it's in our rules it's in our rules okay sorry it's in our rules yeah and it has been litigated so yeah so it is more than just a human all right so then online 14 there's language in bold so the intent of this subdivision is to minimize fragmentation of the landscape and encourage the clustering of buildings so we need to talk about this because other jurisdictional triggers don't include intent language but I've been having a hard time capturing the discussion about why you're adding this and so I think this is relevant information but whether or not it should actually be captured here I think is a an open question legally but I think some of the things that you have been discussing and some of the this doesn't reflect directly what's in the nrb report but that is part of the discussion about why you would add a jurisdictional trigger regarding construction of roads okay so for purposes of determining jurisdiction under this subdivision the percentage really has a question yeah Ellen I want to make sure I understand the question that you just posed can you walk through that again for someone who has limited knowledge of this so there is a proposal in the nrb report to add a jurisdictional trigger for a road rule and I they did not provide language on that but there has been information discussed through your witnesses about why you would add that and so in trying to draft a road rule to reflect the intention and I don't think this committee has fully discussed all of those elements yet in trying to capture the elements of the discussion from some of the people you've heard from I added intent language here which is not typical to do so you may consider legally if that is a place you want to add that or if in the rest of this to sit this in the rest of the language on this road rule if there's a way to capture how to avoid fragmentation of the landscape or require the clustering of buildings we asked Ellen to do that I did specifically I did so the flag is around the intent language versus something that is more specific whether the intent belongs here or not you agree with the intent where does it go and so this is a policy decision point of discussion that we need to have and you know folks have questions about the road we'll ask them thoughts what are where is where members at now on the sevens I find it helpful that the you know NRB discussion and report did say hey this is this would be a helpful tool I think a lot of testimony to that effect as well I think the question has really been what is the appropriate distance and I just keep having to remind myself that this doesn't mean the person can't build it means they would have to go through a review process and um so again I don't really know the 2800 I feel like I have to go outside and walk or something like that I know we've talked about it and I looked on Google Maps and I was like oh it's if I kind of go to the bookstore at the end of the street but generally I lean towards supporting this football fields can help a lot let me yeah we're starting from the DMV all the way to Sarduchis this 2000 so which is like outside like so yeah depending on if you like where you started like if you started up here at this this data so that went down but thanks we have some map examples from the NRC I had a couple of them done as we were over the summer talking about this and so we I can share those with folks Representative Smith thank you this section here appears to me and I'd like to be correct as if I'm wrong that this will allow municipalities or the state to build any length of road they want and do whatever they want no okay thank you why did you say no how wrong am I okay well so and you know where I'm going with it we do we're going to do a certain and obviously on properties so I all right maybe the way to say it is how does this affect town roads is that what you're trying to figure out how does this affect a town a public road well no I'm just wondering this appears to me that it gives the state permission to build roads longer than 2,000 feet whenever they want so and all that's doing is legalizing what they've already done in my opinion so under active 50 currently the state or municipality has to go through active 50 if they disturb more than 10 acres of land and their construction and so the trans when they construct roads regularly go through active 50 and so that's not changing under this provision this depending on how you decide the language will be it may or may not reduce the size of the road before they specifically trigger active 50 so they do already trigger active 50 and as we previously mentioned most active 50 permits aren't granted so but it's setting the level at which there is active 50 oversight of the construction of a road so um I don't you can be specific here about if you want there to be a distinction for roads built by municipalities or the state what I'm seeing here and I'm sorry to take too much time on this but it said routine maintenance shall not include the changing of the size of the road the changing location of the later of the road and routine maintenance shall include replacing a culvert or ditch applying new stone grading and making repairs now this does not apply or it doesn't make it legal to upgrade what might have been a trail and was never a legal town road does it if there's no road there they're not upgrading or maintaining a legal road or uh this is probably going to take more time than you want to allow for madam chair but my point is that a road was built under the auspices or under the claim that it was being that it was rebuilding a road of what was once there and it was not a road that was once there it was a logging road that somebody used to cross land with so I might suggest that we finish walking through language and have legislative council help us understand it and then ask questions and I would I would like to yeah get some help on this because I'm going to get to the bottom of something that happened even if I'm 90 when I get it done then it's good so on the road rule I'm shuffling back through there did we hear from any developers or housing house house serves on this road rule language I can't recall who on this well we heard I think from many trying to get to most if not all of the members of the nrb working group books represented the folks and are those so we can go back and see well a lot of people so okay I would like to mention here from Amy some of those for now okay to go through language it's just a short thing I don't want to lose sight of this into Brian's defense there were some exceptions under the acting 50 but one of them was educational one of them was municipalities no okay I just want to be clear on that so we're talking I was talking about something entirely different so there is an exemption so municipalities it is a greater threshold for them to currently reach active 50 jurisdictions and currently under active 50 just just the construction of a road may not trigger active 50 unless unless it meets the the 10 acre 10 acre threshold once you're once you're in active 50 there are criteria specifically five six and seven which are traffic municipal services and education on which a permit cannot be denied so that's separate and then there's language proposing a new road rule because there was a road rule that was a that was repealed so currently just constructing a road if it doesn't hit the 10 acre threshold does not trigger active 50 jurisdiction absolutely yeah did we take testimony on why that road rule was repealed um I haven't been following your but I do think Brian Schup provided some information over John Groveman some yeah but you I have researched the road rule and so I can also provide some information regarding the prior road rule at some point if you'd like okay so on page 45 construction or road a road 2,000 feet or a single road of 800 feet provide access to or within attractive tractor land have more than one acre going to control by a person for purposes of determining jurisdiction under the subdivision any tract or tract of land that will be provided access by the road or driveway is involved land as used in the subdivision road shall include any new road or upgrade of a class for highway by a person other than a municipality including a road that will be transferred to or maintained by onto page 46 a municipality after its construction or upgrade for purposes of this subdivision to routine maintenance of a class or storm water improvement required under 12 64 or title 10 shall not constitute an upgrade routine maintenance shall include replacing a culvert or ditch applying new stone grading or making repairs after adverse weather routine maintenance shall not include changing the size of the road changing the location or layout of the road or adding pavement for purposes of determining the length under the subdivision the length of all roads and driveways within the tract or tracks of land shall be included this subdivision shall not apply to a road constructed for a municipal county or state purpose a utility corridor of an electricity of electric transmission or distribution company or a road located entirely within a designated downtown or neighborhood development area and a road primarily used for farming or forestry purposes unless used for residential purpose so there's a lot of stuff in this and so Representative Smith I maybe my answer is probably confusing so the road rule that's the language that's on this page addresses some issues that have come up previously with the road rule in determining what is a road and whether or not active 50 jurisdiction should apply to it so it's saying that up a routine maintenance of a road is not going to trigger active 50 jurisdiction but routine maintenance doesn't include changing the size or location of the road or paving it it does however exempt count municipal or county or state roads so Representative Smith so I'm I I don't know if I answered your question accurately because it didn't yet you didn't yet right so I don't so this is intended to apply to private roads and the construction of private roads because public roads already have there's active 50 jurisdiction over the roads constructed by a town or the state under their jurisdictional trigger for 10 or more acres of disturbed land so I think I confused the issue of a minute ago so I'm sorry but there's specificity here that it we're talking about a private road routine maintenance of that roads not triggering active 50 but expanding the road or upgrading the road would trigger active 50 but then utility corridors farming and logging roads and roads located in exempt areas would not trigger active 50 jurisdiction so this prior version reference designated downtown and neighborhood development area because it's a few iterations behind but it may want to say tier one or just tier one I don't know I'm sorry about this language from this is from I think age 926 of 2020 so your committee passed language in 2020 on a road rule and then the senate further worked on it and specifically talked a lot about grading and culverts and added some of that specific language about routine maintenance because I think when vnrc was in there they showed you the language that you had passed out of this committee in age 926 and this language is very similar to it it just added some additional detail around the routine maintenance piece why is it tied to the size of the person well it's a one acre limit and so that is currently in act 250 related to you know one acre towns so I think the original road rule I don't know I mean you have lots of options here the original road rule did use more than one acre of land also so I'm going to comment probably is not likely there's somebody who would build a really more road to the little driving line that's by slightly but my my question Ellen is the reason you know we just track language and you take a look at as the intent of the subdivision to minimize fragmentation is to minimize fragmentation of the landscape that occurs in industrial buildings was because how this everybody talks about that being the intent I've never said it anywhere and so and I understand your point by the way I'm not part of the point but in this language we're here would this give does the board have the but that language there to indicate the purpose of the section does the board would the board have the parents authority to adopt the rule for this section that would bring effect to that I think so so the board has really broad rule making authority under their existing statute and the original road rule was a rule that they adopted on their own accord so you could put a directive in here for them to adopt rules I think they would have authority to adopt rules on their own if they wanted to then a second for electric transmission lines right here or are they covered elsewhere is that why who assumedly they're not executed here they're regulated in some of it all right so section 248 does cover electric transmission lines and the associated infrastructure so I can't remember specifically off the top of my head if roads are specifically identified as a ancillary infrastructure for a transmission line but I suspect those things though that could easily cause fragmentation those are pretty wide I mean even more so than a road to someone's home yeah they can be and I'm also wondering if if a property owner constructs a a road for logging and then at a that's longer than 800 feet and then at a later date purchase to put a house at the end of that road that house placement would then commander at 250 using these using this language yes so if you look at the language specifically on the last the very last clause so I think that that is a common scenario that and that has been considered previously so a road that is primarily used for farming or forestry purposes is not part of this road rule unless it is used for residential purpose so I think that if a road was constructed for logging purposes and then became a residential road it could be jurisdictional and require an active 50 permit now one of the things that is still in flux so this is kind of a first draft language because I haven't heard direct feedback on all of your intent yet but prior versions of the road rule have also included within the within a number of years for vision so it's not in this one but like online 12 there was in this draft date after which there was it would be perspective so you have a lot of options here as you're making the policy decision to sort of tell me what you want to include whether or not you only want it to be prospective applying to newly constructed roads if there should be a number of years after which it resets so like in the construction of housing units it's within five years within five miles and that's sort of to avoid people spreading out their projects so that they can avoid jurisdiction this you could say you know all length of road constructed within a 10 year period and if it some distant time down the road sorry and some distant point in the future a house was added perhaps that doesn't need to trigger act 250 but this right now just says there isn't a time frame on it so once this goes into effect any road construction at any point once it reaches the 2000 or 800 foot limit would require an act 250 permit so there's a lot of variables in this that I do think you have to sort of pay close attention to so that they reflect exactly your intent that is different and do do do forest roads cause fragmentation I don't know if I can answer that that's my point in asking that question is that if they do then one could argue that by simply at a later at the end of that road that they haven't actually made the situation any worse that fragmentation has already occurred and and so now we can put a house there in there and if you could do that then you could build long roads into forests for forestry purposes and then put a home on it and all our language and creating this road rule the undercut I think your point's well taken I mean that that the fragmenting effect of it but it's also it's dependent on the amount of use the road gets and where the road is located and the resources that exist on the site that are being active house with yard yeah people living there year-round would have a different impact than logging every 20 years for example I have and then my other question is um how ancient roads I want to ancient roads fit into this if they if they do an old public right of way yeah that's a legal question yeah so one of the things that is interesting about this entire concept is that road itself isn't actually defined there is a distinction made between a road like road it does cover both roads and driveways so you could be more specific and include more information about these other access trails paths I guess I'll point out for the committee's ponder over their lunch break but you know this still has section seven above it which is sort of a 500 foot buffer version of as representative Stebbins is what we need to decide on but and also the approach and it's focused on distance from publicly maintained roads and then assuming that the town's commitment to those roads drive some version of an economic analysis either before they're made public or as they have to maintain them is one of the intents there thinking about overall costs of these types of roads that makes sense and I guess I'm going to Peter deal if I may ask you how were there other I think if you could give a little history of the road rule but also any other rules that were related to it would be very helpful for us standing I don't know if you can do any of that now or if you can bring that back when you bring back the other information that it still does yeah it's probably the best approach for that right I can tell you that when the board originally came up with the rule in 1975 they did amend it quite a few times before it was repealed in 2001 and so I haven't I haven't looked at if there were any other associated rules but it was one two three four five six seven eight nine ten lines law so it was one two three four five sentences law and the language that I have drafted incorporates a lot of what was there but then provides additional detail on that so I don't know if it would be helpful for me to read you the last road rule from 2001 and I can I can get you this so the 2001 version was the construction of improvements for a road or roads incidental to the sale or lease of land to provide access to or within attractive land of more than one acre owned or controlled by a person in municipalities with permanent and zoning and subdivision bylaws this jurisdiction shall apply only if the tract or tract of land involved is more than 10 acres for purposes of determining jurisdiction any parcel of land which will be provided access by the road is land involved is construction this jurisdiction shall not apply unless the road is provide the road provides access to more than five parcels or is more than 800 feet in length sorry did I trip over that the jurisdiction shall not apply unless the road is to provide access to more than four parcels sorry more than five parcels or 800 feet in length so that was the trigger was it 800 feet in length or were there going to be five parcels having access to the road for purposes of determining the length of the road the length of all other roads within the tract of land constructed within a continuous period of 10 years commencing after the effective date of this rule shall be included so I did try to address most many of the elements that are in here but then also as the committees have worked on this in prior sessions provide additional find scale detail there were issues with the prior road rule and administering it and really it was yes a lot of things came up about like what is routine maintenance of a road when does it become a road so what is a driveway is that different than a road and so some of that is reflected in what you have in your draft before you to address some of the issues that came up with it 25 years ago and so that you're the version in this draft doesn't make a distinction between a 10 acre one acre town but it does set a minimum parcel size of one acre it doesn't speak to whether or not there needs to be a minimum of five parcels it doesn't speak to whether or not it within a continuous period of 10 years so there are some differences in this draft and what the prior road rule was but then it also does as I mentioned provide greater detail about the routine maintenance aspect and and those other types of various roads that could come up like logging roads and farming roads so yeah if you could is it easy for you to send us that take a picture and send it to us or something other thoughts on the road rule right now representatives so just want to make sure I understand where we are with the road which is we've made no decisions right we're going to hear back from the R.B. Lee soon this week can you come back on Friday yeah great thank you so the next change is on page 48 yeah and then to Alan's giving me the look it's kind of 12 it's and the big section yeah represents them do you mind if I just ask for a little bit more clarification in section seven that has the 500 feet language that we just yeah because I understand the 2000 feet or 800 I don't really understand the 500 feet it's that basically saying if you're building a home 500 feet from the road then you would trigger at 250 yes yeah can we just say that again slower do things I'm gonna let Alan say sure if you're building a if you're building something that is going to be located more than 500 feet from the center line of an existing road this is a driveway versus a road basically that's less than a tenth of an inch I mean after a month what 500 feet oh this is agnostic about whether or not you're actually constructing a road or driveway so it really is about the construction of a home and how far you are from an existing road the group public road but I think it's actually not just restrained to a home sorry yeah I said that the first time it's commercial industrial residential way ground yeah um just be critical infrastructure yeah it's good production yeah so critical infrastructure isn't defined this is not a municipal trigger this is for commercial industrial residential use municipal or state construction as a different jurisdictional trigger okay but but electrics utilities are not a municipal or state entity necessarily Senate Morse thank you Madam Chair and I'm wondering this is the road rule is very descriptive and I know it has been controversial with people and we have version a version b here 500 from the center line and then the 2000 foot plus the 800 foot single road I didn't know if we had any flavor or diet and this might come into discussion side maybe doesn't need an internal but if we just determined that we wanted the 2000 foot maximum aggregate road and then have the A&R or natural resources create the rules around that instead of us putting it into yeah the environmental board yeah this I'm sorry it's natural resort port now will be the final ready board degree yeah that's a thought for sure all right okay we got I think we'll break for lunch and we're reconvening one o'clock we're at a different topic represented by just picking up on represent wait we actually could also do both you can have we could fill in the form of the board still adopt we will not not put that to be okay yeah can you say it again sorry well I'm down here this one you could direct them to adopt rules um I don't off the top of my head I don't know how many rules currently sort of flesh out the jurisdictional triggers themselves this is an unusual pace but guidance I think has been used for some of the jurisdictional triggers but I don't know if there's any rules directly associated with except maybe utility lines trails and utility lines um so otherwise most of the other jurisdictional triggers don't necessarily have a rule associated with them also but you could potentially do that all right thank you Ellen yeah it will um it will actually break until lunch I mean to everyone I think third of the way through this okay I'm just really yeah uh but compared to highlighted even the distinction highlighting this being possible to hear from the utilities or representative of the utilities about this Pico's language I'd like us to hear about yep all right hear adjourned good morning