 I was kind of waiting for our, let's say, council person, Michael Grady to get here, but I'll call the meeting to order and we'll introduce ourselves and then I'm going to have Michael do a quick, we had a few questions from previously, from committee members and I'm going to ask Michael to review those two questions and then we'll get to the schedule and stick with it. So John, would you like to start and introduce yourself? I'm John O'Brien, I serve on the House of Agriculture. My name is Chris Gray, I serve on the Senate representing the ATHC. I'm Harvey Smith and I serve on the House of Natural Resources Committee. Amy Sheldon and I serve on the House of Natural Resources Committee also. I'm Bobby Star from Essex Orleans County, chair of the Senate Ag Committee and also chair of this. Representative Carolyn Hartridge, I represent the Woodham Three District and I chair the House of Agriculture and Forestry Committee. I'm Mark McDonald, I represent Orange County, I serve on Natural Resources. Chris Pearson, Chittenden County, Senate. Thank you folks. Michael, would you like to review, we had a couple of questions from the members of the last meeting. I think John asked a question, well it would be nice to know what other states are doing. So you asked for two documents at the last meeting. One request came from Representative O'Brien is to kind of elaborate, summarize on the key decision points that the committee needs to make. Remember I went through the flow chart and said here are some points or things that you need to deal with and you wanted that in a more summarized form. So I sent each a draft memo. I have the final memo here if anyone wants a copy. In addition Representative Sheldon asked for a comparison of exemptions, wetlands and permitting exemptions in other states. I also sent that to you but it was formatted on this really crazy big paper. I've been in ITL this morning and not having been able to print this out. I'm just printing out in the copy room right now. I've looked at 13 different states. As I said in my email to you when I sent this, not every state has state wetlands law. So you're never going to get a full 50 state comparison. In addition, consultants get paid hundreds of thousands of dollars to do 50 state comparisons on a full kind of comprehensive scale. I did not do it on a full comprehensive scale. What I did is I summarized the exemptions from those states with the federal exemptions and then I give a summary of that in one of the third columns. I will go check on those copies when I have a chance. But you'll see that many of the states follow the federal exemptions or very close to the federal exemptions. There are a couple of states like New Hampshire that don't at all. So there are alternatives out there. I would say the majority follow the feds but that is not the only model. Well, the questions that Representative O'Brien wanted was to basically elaborate on what the committee's charge is. And as Representative Sheldon noted in the last meeting, many of your key questions follow the legislative charge. And so the memo that I drafted, and I'm sorry that it's on the single-sided paper, again, I key help. It lays that out and it follows the legislative charge and it elaborates on each of those provisions underneath the legislative charge. So the first part of your legislative charge is whether the definition of wetlands should be amended, including whether the definition of wetlands under state wetlands law should be based on objective criteria such as size or location. So I'm not going to go into the substance of each of these. I explain each of the questions and then I summarize those potential questions on a page four of the memo. The first summary of potential questions should the definition of wetlands under state law remain the same, including whether significant wetlands should be determined according to review of the functions or values of the wetlands. Should the standard of whether a permit is required for activity be based on objective criteria similar to the standards employed by the U.S. Army Corps of Engineers and should the activities requiring a permit be narrowed or categorized according to distinct types of alterations similar to the A&R proposal. Then that leads into the next category of your legislative charge, the standard by which the state shall review a permit application for disturbance of a wetland or a wetland buffer. Again, I'll just go to the questions which are on page six. Should the standard for issuing a permit for an activity in a wetland be set forth in statute or only included in rule? Right now that standard is only in rule. Should the standard for denying a permit for an activity in a wetland be that the activity will have no undue adverse effect on the functions and values, which is what it is now under the rules, will have no undue adverse impact on functions and values, which is what is A&R is proposing in their legislation, draft legislation, or should it be some other standard? And if a proposed activity has an undue adverse effect or impact, should a person still be able to attain a permit if they complete the mitigation sequence? The mitigation sequence is actions that a person can take if they're going to have an undue adverse effect in order to get a permit. There's also something called compensation part of the mitigation. If you do the mitigation sequence and you still can't meet the standard, you can do something called compensation underneath wetlands rules. But in the A&R legislative proposal, it's a little unclear whether compensation is an alternative. A&R is saying yes it is, it's part of the mitigation sequence, but that's not clear from the language that's proposed. So if a person cannot complete the mitigation sequence, can certain activities obtain a permit through use of compensation? If yes, should compensation be referenced in statute? And then the proposed exemptions. Is that payment to mitigation funds? It's not necessarily. So compensation can, let me take you to page five in the third full paragraph down. It says what compensation measures may include. So compensation measures may include establishing new wetlands or enlarging the boundaries of an existing wetland to compensate for the adverse impact of the proposed activity. The compensation may also include payment of fees to a federal and a lieu fee program or mitigation bank approved by the secretary. So then page seven, the next question was proposed exemptions from regulation, regulation of farming. And so the first, the summary of those questions is on page nine. Should the farming exclusion from the state definition of wetlands be retained so that areas that grow food or crops in connection with farming activities are outside A&R jurisdiction? Or should growing of food or crops be subject to A&R authority but exempt from wetlands permitting? So remember, that's part of the unique aspect of Vermont's definition of wetlands and has that exclusion clause for areas that grow food or crops in connection with farming activities. And then regardless of whether the farming activity exclusion is retained or farming exemption adopted, what criteria should apply to qualify for the exclusion or the exemption? Should it apply to all farming, to growing of food or crops in connection with farming? Should the definition of farming for the purposes of exclusion or exemption be retained as drafted under the A&R wetlands rules? Or should it be consistent with Title VI, the RAPs and Act 250, which is the broad definition of farming? Should there be limitations on the farming exclusion or exemption, such as the areas must have been in production in 1990, must be an ordinary rotation or must comply with the RAPs? Those are all conditions that are in the wetlands rules right now for the farming exclusion and the RAPs is for the farming exemption. And then last should be allowed uses under the A&R wetlands rules be amended to be consistent with or more similar to the U.S. Army Corps of Engineers Dredge and fill permanent exemptions under state laws. And then the last is about permitting fees and what those permitting fees should be. The body of that subsection discusses how permitting fees are subject to a state statute definition. They are supposed to be for services rendered. The question is whether or not the permitting fees for wetlands permits are for services rendered, or are they also serving a regulatory disincentive, incenting people not to disturb or conduct victims in a wetland. The agency says that the wetlands permitting fees are about all of the services that the wetlands program provides. It's not just about permitting. It's about pre-application review. It's about classification determinations. It's about wetland delineations. And that's what their permitting fee covers, not just the act of permitting itself. Which leads to some questions and that should the wetlands permitting fees be amended to more closely track the costs of permitting services provided by A&R personnel? Should they be left as is to pay for the service of the wetlands program as a whole and to retain some incentive for persons to avoid wetland disturbance? And whether certain activities should be exempt from permitting fees, and if so, what activities should be exempt or capped and what is an appropriate fee capped? And should there be fees for the provision of other services provided by the wetlands program, including mapping class determinations and pre-application review? So there's a lot more detail in the memo about each of those subsections and what all of those questions address. But I think that's effectively a summary of what you need to do for your charge. Thank you. There are questions for Michael. I think there's time in regards to the issues. Thank you. Thank you for having me this morning. My name is Laura LePierre. I'm the wetlands program manager in the agency of natural resources. I've been the program manager for about six years. And our program is charged with administering the Vermont wetland rules and wetland statute. Our experience is about 70 years, all told, combined with the six staff that I work with. And we've been working with the current framework of regulations for about nine years now. Before I get into the details of functions and values, which I'm going to testify on today, I just want to give a bit more context. Oh, yeah, I'm not that tall. So Michael Grady has submitted in testimony the documents called Alternative Wetlands Draft Language 1.1 that should be in your packets. And that's the latest version of the A&R's draft statute, which we sent over to the State House last session. These changes were not, the genesis was not because of issues with the agricultural exemption, actually. It wasn't because of issues with farmers in wetlands specifically. It was because we were looking at the program as a whole. We received concerns, we've had capacity issues, issues with efficiencies and such. Agriculture is a very small subset of the group that is regulated under the wetland rules because so much of it is exempt. For example, between 2016 and 2018, there were a total of 13 permits related to agriculture. And all told, we had over 300 permits in that time span. So dealing with this issue with capacity and efficiency and clarity within the rules, we convened a stakeholder group which had around 11 meetings from 2016 to 2018. We invited 30 individuals from all aspects, environmental groups, utility agencies, wetland consultants. We consistently got 20 people or so. Oh yeah. Sorry. I wanted to just ask a question if we went on my good place. So by the count, you're saying 13 of the permits were related to ag proposals. Do you characterize it in terms of papers? I don't know. I don't have that number on hand with me, but I can certainly follow up with that number. It doesn't. It doesn't, but those projects weren't significantly greater in impact than those other projects which we issued permits for. But I can get you more specifics on that for sure. So with that group, there's actually several individuals who are testifying today who were in the stakeholder group or their organization was a part of the stakeholder group. Art Gilman, John Groveman, Phil Huffman, Jeff Nelson. Karina Daly was in a special focus group on discussing classification of wetlands. So you have a lot of great people today to ask questions, to hear their perspective on how you've gone about with changing the rules. So the proposal that went forward, it wasn't unanimous from this group that everybody wanted these changes. In general, though, folks were interested in the concept. You can ask them yourselves. We have heard recently from a group of the stakeholders that they'd really like to meet some more and hash out some of the details. And I wanted to say that ANR is in support of doing that. Right now we actually put a hold on any additional stakeholder meetings because of this committee. Of the 30 odd people, you said that was on the focus group. Of that group, you mentioned three or four just recently. And they seem to be all from the environmental groups that kind of keep an eye on things like this. What other people might have been in attendance at these groups, from farmers to business people, developers? Is there some of those folks? Certainly. We can provide a list of those individuals, but we had folks from the ski industry there. The Ag Agency was present. We later added a couple of farmers to the group for our last meeting. The forestry sector was there. There are a lot of people. As long as you provide a suitable list of people. Okay, great. Yeah, and I'll let the individuals who are testifying today explain a bit of their role, because there are certainly folks that are associated with environmental advocacy groups, but there's also people who are consultants who work for developers primarily. So, going on to functions and values. I've provided this sheet last session in the four committees that you guys are associated with. The statistics are things that Secretary Julie Moore went over last time. And I just wanted to provide this document again, because this is how the wetland functions and values are listed within the rules. Sorry, they don't all show up on the screen for those who don't have it. So I'm going to talk about more details on how wetlands provide these functions and values, how we assess them, and then loop it into the agency's proposal for changes to the classification system. I'm hoping that this testimony will help the committee on two points that you're charged with. Points one and two. One, whether wetland definition should be amended, including whether the definition of wetland under state wetlands law should be based on objective criteria, such as size or location. And number two, the standard by which the state shall review a permit application for disturbance of a wetland or wetland buffer. So first, the basics, functions and values are separate. Functions are self-sustaining properties that exist in the absence of society, such as sediment retention of a wetland. That's something that's present whether or not a person cares about it or not. Values have impact and interest with society. So it's things that benefit society, like say you go paddling down the La Plot River and you see the wetlands, and it has a lot of aesthetic value for you. So that's more difficult to assess because it has to do with the person's convictions and one person may care more than another. But that's why we care about wetlands. It's why we protect them. So why do wetlands provide more functions and values than upland areas on the landscape? It all has to do with the water. There's an intermediate level of water. There aren't streams, there are not deep water, lake habitats. There's fluctuations in water levels and such. The water brings in nutrients and plants and animals. Biota uptake those nutrients, allowing for a concentration of different species. The changes in the water levels causes disturbance, which allows for more biodiversity in those areas, more structure. And that structure creates more habitat and so provides a lot of these functions, fish habitat, wildlife, rare species, a lot of really rare things are adapted for wet habitat types. Because there's a concentration of wildlife, people like to recreate in them and do research in those areas. The other functions, flood control, water quality protection, erosion control, are all really integral part in our TMDLs, our Lake Champlain and Formagog cleanup plans. We put in those plans that we have these wetland rules that are protecting those functions which allow for cleaner water. So we find it's really important not to roll back our regulations so that we're able to keep with our commitments with the EPA. So wetlands, when they're not over saturated with pollutants, do a really great job filtering and attenuating nutrients and sediments without any maintenance required. These are natural systems. This is especially true for more natural wetlands, although managed wetlands do still provide these functions to an extent. Could you tell us whether or not as our rain, I guess, seems to have gotten greater, we have more water than we used to. Does that flood the rivers and the rivers over a wall? Do we lose many wetlands because that silt from the rivers flood into wetland areas, which are usually low-lying areas and cause damage to the wetlands? Have you done that in study? It's really dynamic. So you can have sediments that make it difficult. It can mask the wetland characteristics. It can raise the elevation above the water table so that it's now no longer wetland. But certainly as the river moves, it creates other wetlands elsewhere as well because the sediments being taken away from another location and deposited. So I wouldn't say that the increase in precipitation is causing wetland loss overall. I think there may even be more wetlands. So when nutrients and sediments make their way into wetlands through those flood waters or from runoff, these wetland areas, although not all wetlands are flat and bowl shaped, those which are slow down the waters, the roughage from all the biodiversity of trees and shrubs and grasses really slows down the water and allows sediments to drop out into the wetland area and not make their way back into the streams and rivers. That biomass also uptakes the nutrients for while it's living, turns into trees and such. When those plants die, that leaf litter stays within the wetland. When you have less oxygen, it takes longer for organics like leaf litter to come apart and allow the nutrients to leave the system. So organics is a really important part of how wetlands hold phosphorus as well as carbon too. So does it reach some sort of steady state though so that it may be a slower cycle but as much comes in, it's going to leave it? You can certainly saturate a system. Is that a normal endpoint or a wetland? No, if you're not receiving a lot of pollutants, wetlands are able to filter and use that. Some of the nutrients leave the system from plants and animals leaving the wetland and such. But there are places in Vermont where the wetlands are oversaturated with nutrients just like a lake or a stream and they're not able to provide that function as much. Although if they were gone, there would be a lot more going into the system as well. So it's dynamic. There's definitely nutrients coming and going from the wetland. Overall, we're seeing more nutrients staying within the wetland and there's a lot to consider. pH, the amount of iron in the soil, the amount of oxygen. So how long the wetland is flooded or not flooded makes a big difference. And UVM is actually working on figuring out the exact ways that we can dial in how we do wetland restoration so that we are improving our ability to attenuate nutrients like phosphorus as much as possible. I want to make the point too that wetlands with managed vegetation also provide these water quality functions if they're allowed to persist. They might not be as beautiful or have any recreational value but they're still providing these water functions. They could recover naturally over time if left alone or they can be actively restored to provide greater function and value such as NRCS or Fish and Wildlife Service providing payments to landowners to do restoration work. I could keep going on functions and values but I'll move on to talking about how we assess functions and values. And I want to make the point because we are looking at whether we want to align more with the Army Corps of Engineers seeing what they do and they assess function and value as well. This is a couple pages from their book of the highway methodology which has been in place for a long time and they use this for their regulatory program. It's not a numeric task. You don't get a 10 for water quality function or anything like that. It's qualitative and that's because there's really no good system for giving specific quantifications yet for wetland function and value. It doesn't mean that they're not important. It just means that it's difficult to assess. There is definitely professional judgment involved with this assessment but on a national level this is how we're assessing and protecting wetlands not just within Vermont. So for comparison I've given you our wetland evaluation form that we've been using for a very long time within the wetlands program. It's had some changes over the years but it's basically a checklist of physical characteristics of a wetland looking at the wildlife, looking at where it is on the landscape and using all of those criteria in conjunction with one another to determine whether the wetland is significant. So I'll give you an example of a wetland for us to work through this sheet. So say we have a coniferous forested wetland, a cedar swamp. It's two acres in size. It's really bowl shaped. There are many small streams coming into it and just one coming out. There are no large bodies of water upstream of this wetland and there's property downstream along the stream about a quarter mile away. So if we look at the 0.1 water storage for flood water and storm water runoff you see that there's a constricted outlet like what I described is something that shows that the water is being held back for some time. There's physical space for flood water. There are streams present. We can look at whether we think it's at a lower level say if there is a lot of upstream flood storage maybe it's functioning at a lower level in the landscape however that's not the case here and it is considered a higher level of flood storage if there's potential for damaging public or private property which is the case of this wetland. So I would call this cedar swamp significant in flood storage function. If we look back at the way the wetland rules were in place before 2010 this wetland wouldn't have been protected because it wasn't on our maps and we only protected wetlands that were mapped. And coniferous wetland areas are difficult to find on aerial interpretation so this one wasn't picked up by the mapping system. Today we have the presumptions of significance so this wetland is not mapped but it has it's over half an acre in size it's connected to a stream so it's presumed to be class 2. Somebody could petition for it to be class 3 and not regulated by the wetland rules but that's generally how we do things today. Now with the federal definition of wetlands it's very different. There's waters of the U.S. and I just wanted to take a moment to explain how there's a lot of proposals for revising the waters of the United States what's actually protected federally which would reduce protections to head water streams and smaller wetlands that are providing functions and values. I do see the value in aligning with the Army Corps where it makes sense but we need to make sure that we're not tying our jurisdiction too closely to pieces of federal law that are in flux and may not be protecting Vermont values for wetlands. And the proposal that A&R has put forward still protects the functions and values of wetlands. I really like the concept of the way the rules are set in place now that we're only protecting wetlands that are significant in function. Significance is a 10 page test that takes a really long time. We get over 600 inquiries a year of people saying, is this wetland protected? Do I need a permit or do I not? That it can, you know, going out to the site and looking at it we might be able to give them an answer in a half hour. We may need to go back to our desk or get more information from the consultants in order to figure out the classification. What we'd really like to be able to do is have a quicker answer to which wetlands are protected under the rules so we can focus more time and energy on educating people about wetland protections and doing restoration projects than DDC. Do you have people on board to take care of this type of questions? If you have 300 people, you must have more than 300 applied for permits if you issue more than 300 permits. Some of them must get rejected to some degree. Do you have people on board that can do a quick response or answer questions for people that call you or have you come here? Yeah, we do a lot of interactions one-on-one with landowners to help them understand where their wetlands might be on their property and whether or not it's protected. We do that today. We could focus more on helping people understand where their wetlands are if we're spending less time doing functions and values assessments before the permitting step. Can I follow up a little? I'm wondering how many staff do you have committed to helping the public with these inquiries? We have six. Just to make sure I understand what you're saying. Aligning the federal law is the situation that we have to at least meet the federal standards like in water actors or something like that, but we can have rules regulations that are ending seeds on that. That's the minimum level for what we must do. There's no minimal level for what we... There is because of our commitments to the EPA that we need to continue to protect wetlands to the level that we have been as a state. State regulation, unlike some other environmental regulations, state wetland regulation is completely separate from federal. So we don't necessarily protect the same wetlands today as what the federal government does, and we also have the addition of wetland buffer resumes that are protected that the federal government does not. So can you say whether we're more protected or less protected than when we're under federal law? It depends on the wetland. If it's a wetland that we didn't find significant, then we're not protecting it in the federal government maybe. When it comes to protections for functions and values, we have that more seeded into our permitting requirements than the federal government. We're more focused on water quality and navigation, whereas we can focus more on endangered species and things like that, not that they don't. But it's more baked into our wetland rule instead of being a separate rule. Just to clarify slightly, the federal government still operates in Vermont. We don't have any delegated authority over the 4-4 program. So the two regulatory programs are separate, but are both operating here. It's not the way we've assumed EPAs authority to administer the points of discharge program. So what we're describing is two separate regulatory programs that are both operating in Vermont and there are distinctions between the jurisdiction that they take. But because we have a wetlands program here, the Army Corps is still also regulating wetlands in the state. And the last clarification, Vermont's status in terms of how you regard significance in our wetlands. If you say your default now is Class II or hasn't been mapped, isn't there anything more you can get? You'll assume a Class II visitation, and that changed recently? Yeah, so in 2010, the regulations changed so that the agency of natural resources could reclassify wetlands to Class II, which were not previously on the Vermont's significant wetlands inventory maps. And the way it's been functioning is we have a list of presumptions of significance. Things like the wetland is over half an acre in size. You should presume that it's Class II and protected. If it's connected to a stream and there's a lot of herbaceous vegetation nearby, then that's presumed to be significant. If it's a vernal pool providing a feeding habitat, on and on. They're presumed to be protected and we protect them. Somebody could specifically request a classification of that wetland. They can argue that it's Class III go through this checklist and say this wetland is not significant in function. And we have a petition process for that. Thanks. I guess I want to understand really well why ANR is making this proposal to us. And I think what I heard you say was that you would like more capacity for staff to proactively identify wetlands. And if you make this process maybe more streamlined, that would allow that to happen. But doesn't the very fact that you're responding to these requests also identify significant wetlands? And that you're actually working on the ones that are potentially most at risk because there's a development that's triggering the inquiry. So this is kind of hydrating the process for you. In terms of prioritizing which wetlands to get on the mountain to be identified. Yes, but we feel that there is a faster way of getting at which wetlands are protected by taking that list of presumptions of significance and just saying with some minor tweaks in the language that's in the bill. These wetlands are Class II and that's how they should be treated. So that consultants who know how to delineate the edge of the wetland can provide their clients with more information on which wetlands they need to avoid and minimize impacts for. And we can shift some of our resources on some of the other inquiries that we receive. The way the presumptions are set out is it may or may not be significant. It may or may not be protected. If somebody comes in there with a bulldozer and we're not able to do the 11-point test at that point because we didn't see the wetland ahead of time, it makes it difficult for us to say, well, this was actually a significant wetland and we need to clean this up. We need to restore this wetland. It's a lot easier to say this wetland was over half an acre looking at aerial photography, digging in and just seeing where the organic layer begins. It would be an easier test for us to be able to go forward and get restoration happening on sites where people did not ask the question on whether or not they had a protected wetland. And how often do you find that destruction of the wetland occurring prior to an inquiry? Most of the violations that we find are instances where someone did not ask us if they had a wetland first. How often does that happen? I can get you the report of complaints and those that turned up to be actual violations. We get one to five complaints a week. They're not all violations. Sometimes we can't confirm whether or not they're violations because of the destruction that has occurred. One more. I just want to know how many wetlands. We have a finer suit. We have a process that identifies more functions than the federal process. It's one thing I also just heard you say. What would be lost by aligning more closely with the federal standard? Clarity would be one because they're working on revising which waters are protected. We've been in flux for about 20 years with which wetlands are actually protected. The whole intent of this group is to try to get some clarity for our people in the state of Vermont. So they know who's in charge, who they should call. I would say our clarity isn't too good and that's part of our charges to try to develop clarity to our own rights. Because we have federal people who then say they're going to go. We have the ag agency that goes and they say that it's fine to go. Then we have A&R that comes along to oh no, no, you can't do this. You should have called us before them. I mean, we're struggling with clarity ourselves. So that's the purpose of one thing we're supposed to help straighten out here, Chris. I thought I heard you say something about our obligation to the EPA through our TMDL agreement. Obligates us to not have a weaker standard of protection. So I'm curious, does that mean that through this process and if we land with the bill that the governor signs, then it will be reviewed by the EPA or we just self-certify or can you just explain a little bit, it's the first time I've heard that kind of. I'm not entirely sure how that process would play out. We're not there yet, but I just wanted to really emphasize that these changes have implications for greater water quality issues within the state. Okay, is it fair to start at the top level and say that as it stands now the EPA would not permit us to become more relaxed on our wetland regulations? I don't know the answer to that. I think this is Hannah Smith again. The reference to the TMDL, the loading is based on current land uses in the state. And so the concern is that any kind of change to land use or plan use regulation that happened quickly would alter the modeling that went into determining the loading for each leg segment. The EPA would review our state wetlands permitting program for compliance or just be the modeling. I think everybody in the world is completely committed to having a clarity. The question is, what do we get recommended that there be no disturbing of wetlands or these be the loom poles that are committed to development in wetlands? Unless you make that distinction, then it's time for clarity. But until you make a distinction, there's nothing to make clear. So where do we go? Well, we certainly discussed that in the stakeholder group is there's, you know, some regulations have like hard and fast rules. Yes, no. That's clear. And then there's what we want flexibility so that we can live on the landscape of Vermont. And that's where the wetland rules has a lot of flexibility to consider specific projects and see which projects would not harm the functions and values of the wetlands. And so that's where all the complexity comes, which makes it less clear. The stakeholder group was not interested in a hard and fast stay away from all wetlands approach because you don't always know where your wetlands are. And it can make it really difficult to do anything in Vermont to do any building. On wetlands. On wetlands. If you have our fast school. Yeah. That's pretty clear. Sean, Laura, regarding wetlands, what's the relationship between the EPA and Canada? I mean, do they have on the enforcement body or like you were talking about? Yeah. Also been in flux. And so I didn't understand that the Army Corps has certain rules and that changes administration with administration or the EPA. So they're working under the Clean Water Act together. Army Corps is the regulatory entity. They approve, deny permits, do the more thorough or do all of the assessments. The EPA provides guidance documents on how they do that work. And they also have veto power if they feel that a project should not go forward. Yeah, more. I just want to end on two points. One, that the list for changing the definition of class two is based off of the presumptions of significance, which the program has been administering for nine years now and finds that in a lot of instances those wetlands are significant. It's a coarser filter. You may end up with some wetlands that would be protected with a more thorough analysis, not protected. And vice versa, you might end up with some class threes protected. But ultimately we would still be doing the thorough functions and values analysis within the permitting review process. I wanted to just mention that I'll be here for the rest of the meeting. So if any other questions come up, feel free to ask. Chris, one quick question. On the federal document that you showed us that the power weapon functions and values apply to the regulatory program, there's one section in there that's bolded and it talks about a selection of the least environmentally damaging practical alternative. So can you just explain how that works? It's a slightly worrisome phrase and it sounds like damage will be committed but we're looking for the least damaging. Yeah, so that's in their mitigation sequence. That part of their regulation means that if you have significant impacts to a water resource that you need to look for alternative sites and assess the environmental harm if the project was conducted on those sites as well to demonstrate that they try to avoid and minimize impacts. And this is the site that they ended up proposing for their project which may have impacts to wetlands. And then it goes to the next step of if there is harm to wetland function and value then you need to mitigate, offset those impacts by creating or restoring wetlands elsewhere. How often do they ever just say or do they ever say the answer is no? We're not going down, we're not going to know a lot of damaging impacts even though they're down. I haven't seen a Army Corps denial of a permit in Vermont since I've been manager. There have been some very long lengthy discussions of pushing for further analysis to reduce impacts, however. Yes, on this little sheet you have on the backside you have exempt wetland and you're talking about the farmers exemption. One spot you have an access road permit is needed and the other area is that access road needs a permit. Some of these roadways have been in existence for a very, very long period of time. Most of the farmers don't know where a wetland is and where it is among their properties. So what's the process? I assume looking at this that every farmer would need to get a hold of your department to have their property assessed, delineated. What's the process that we follow? If you're doing a construction project where you're putting in a permanent structure, a new structure not continuing to have a structure in place through a wetland, there is an assessment of whether or not you have wetlands on the site. That's something that the program can help out with. You can also meet with a consultant in some instances. If you have cropping insurance, you can have NRCS go out to the site and assess the wetland. You mentioned the insurance company. I'm trying to follow this through. Go into a little more detail on how the cropping insurance would... NRCS has federal cropping insurance. I understand that maybe next meeting they're invited potentially to testify. So I would definitely defer to them, but if someone's enrolled in NRCS program, they have to follow the wetland protection policy. So they have technical staff that help farmers find where the wetlands are so that they can protect their wetlands. So they come out and delineate their property? They will, yes. For cropping insurance? If they're enrolled in an NRCS program, which includes cropping insurance. But I thought that land that was farmed was exempt. So I will not make any connection with the cropping insurance. So I'm thinking that area would be exempt. Yes. It's exempt while it's cropping food and crop. It's not exempt when you want to fill in the wetland area under the wetland rules. And herein lies a lot of the discussions that we've had. NRCS is a separate entity with their own wetland protection policy that is different from state exemptions. So let's just follow back on the south of us to swamp us to provision where we have prior converted ag lands and farm wetlands. Yes. And we know where they're from. So those are prior converted lands, they're exempt. People are not aligning here. There's a distinction between the federal regulation and state. And I think what I'm hearing is the feds would be responsible for this change in use and have to evaluate it. Well, I'm trying to understand that part. Yeah, me too. I'm trying to help. Yeah, and I'm best first in state regulations and not federal regulations. And it sounds like you guys are going to be having federal entities come on. I encourage you to ask these questions. So it sounds to me like they might be conflicted regulations. Yeah, they're different. Different. The ASCS could come in and cite a bunker silo in a particular location and they have to comply with all the deadlines. And then an IRC could do that under the way the bill's written to believe. Well, no, that's not right for our rules. You've got to do it this way. And it doesn't serve anyone any purpose to have conflicting state federal regulators having different opinions and somebody's paying the bill and it's usually the feds that are cost sharing all these things. And it costs a lot more money if you start redesigning and changing things. The AG agency usually in these projects is their boots are on the ground with ASCS and they're there to help steer that final fluid process that's accepted. So this conversation that we're having right now is one of the reasons why I felt it was really clear that we should have the study group and why we included it in our bill. There's a lot of confusion. I'm not pointing my remark to you. I'm just saying to the entire committee and anybody out there that this is why I really felt we needed clarification because there is a lot of confusion. It adds to a lot of delay in terms of what farmers want to do which are potentially projects that will improve water quality, improve soil health. And if we can just get to the bottom of this, somebody asked what our goals were in this process. That's my major goal here. Certainly. Today we've done a lot of work coordinating with NRCS and the Army Corps and this is where we're at. Certainly there may be places within our rules that could improve the situation. Thanks. Okay. Thank you. We have Miss Daly. My name is Karina Daly. Thank you for allowing me to testify regarding the regulations in Vermont. I have been working in the wetland consulting field for the past 16 years. 11 of those years have been in the Northeast, primarily Vermont, with five years prior in the inner mountain west. In my current position at Trudeau Consulting, I conduct wetland delineations, design wetland restoration and mitigation projects, complete state and federal wetland permit application, sometimes after the fact, and provide environmental testimony to Act 250 and Act 248 land permitting. I am a nationally certified wetland scientist, as well as a New Hampshire certified wetland scientist. I believe we all want to live in Vermont for the same reasons. It's a beautiful place, and of all the places I have worked as a scientist, including Wyoming, Idaho, Montana and Utah, I have considered myself lucky to live in a state with the environmental planning foresight that Vermont has. As a consultant, I recognize that this doesn't come without out of its own headaches and burdens, financial and emotional, to landowners, developers, single family homeowners, municipalities and farmers. But I also think that the project is ultimately stronger as a result of these rules. Typical wetland issues might include a client's surprise in learning that their roadside commercial life is predominantly in class to wetland, or complete lack of understanding of what a wetland is. The iconic cattail swamp is usually much more obvious than a forested hillside seep, or a seasonal flood plain forest. After educating them about their land's natural resources, there is the effort to explain and interpret the wetland rules, federal and state, that are applicable. And in some cases, this may mean explaining to them that they just built their driveway across a large, unmapped, jurisdictional class to wetland without a permit. Or that it is unlikely that they would get approval to convert their 40-acre forested wetland into hemp or corn production. Obviously for many landowners, this news can be frustrating, or even devastating. What is the disconnect that allows people to go so far down a path to land development before they are hit with understanding the natural resources that exist on their parcel? I believe the disconnect is lack of wetland and water resource education, and lack of accurate wetland mapping. As a consultant, it is my job to advise clients to the best of my ability, and that means understanding the project goals from the perspective of the landowner, providing sound data as a scientist, and recognizing how local, state, and federal regulations apply to their project. It is true that the wetlands world can be dynamic and not always well-defined, and there are certainly some changes that can be implemented into the Vermont Wetland Program to simplify, improve responsiveness, and clarity. But overall, the rules as I interpret them are solid, and people are beginning to recognize that they exist. It goes without saying that clients are used to having to pay for engineering design and permit fees for wastewater and stormwater infrastructure associated with development. The same needs to be true for natural resource impact, including wetlands. If we want to continue to live in Vermont where we fish, hunt, farm, hike, and ski, then we need to accept the development of any kind. There is a concurrent natural resource impact that we need to be accountable for. We are gathered today to study the Vermont Wetland Rules, while a working group also exists in this session focused on water quality. A portion of Act 64 includes a program that provides farms with financial assistance to address water quality. These measures make it seem like we are all trying to do the right thing, but we may need to work harder to see the connections across the landscape. I am familiar with the results of the Wetland Working Group, the stakeholder committee that was formed in 2016 to work with DC to provide clarification to the Vermont Wetlands regulations. I have requested copies of that document to be shared with you. It is entitled Draft Vermont Wetlands Stakeholder Update. I believe that you guys have copies of that. This report identifies the two-year effort that was made to clarify the Vermont Wetland Rules and improve predictability and accountability. These concepts were distilled into the Wetland Statutory's proposal and the latest version of the last session's bill to amend the Vermont Wetland Rules. The bill provides improved consistency in the Wetland definition, clarity in the Class II determination, and added detail to the agricultural exemption. Most importantly, I hope DEC will continue to work in partnership with the Vermont community to educate the general public, including Vermont youth, to improve the overall understanding of what the fines of Wetland and the ecosystem services Wetlands provide, and expand statewide wetland mapping to include not only remote sensing, but ground-trouting in the form of wetland assessments and confirmed delineations. Implementing these preventive measures to our existing wetlands should help to alleviate, after the fact, violations, restoration, and regulatory distrust. Thank you for your time and I'm happy to answer any questions that you guys might have for me. Did you submit your written testimony? I did not. Would you be able to do that? I can do that. Thank you. Roll call. Chris and I wonder if our sister is sitting over there? Yes. Hi, Chris. Karina, thank you. This is helpful. Could you help me understand in your work how often are you sort of 50-50 that you're pulled in after the fact to help somebody navigate a situation where they are in violation, or are you ahead of anything? I'm just trying to understand the scale of what we're facing here. I would say that I'm 80 ahead of the game, 20 after the fact, so bless. And has that been consistent over your career? In Vermont, I would say it has. I would say that I'm getting more requests at the forefront now from municipalities that are learning more about wetlands, regulations, attorneys, real estate agents. So there is an effort for me to be the first person on the ground, which saves a lot of frustration later. Thank you. And that 20 percent, are they people that are just really nearly going and doing it, or are they people that haven't heard about it, that are doing it by air? I really think that the majority of them are people that honestly didn't know that they were in a wetland. So that's why we need to do more outreach and education. I'm 80, 20. Yeah, and it varies seasonally, I'm sure. Chris? So as a practitioner out there seeing wide variety of projects, this is an impressionistic question, but do you feel like how are we doing on wetlands management? I know we're working on clarity and concrete rules and permitting and all that, but in terms of your sort of reports on environmental health and impacts of wetlands, are we gaining, losing, training water? How do you look at that world and work it? And I think, again, this is the mapping issue. We don't have all, there are so many wetlands in Vermont that are not mapped. And those will never be mapped until there's a lot of ground truthing related to them or, you know, you're required to submit your shape file of the boundary with your permit. But so, you know, the 4% of mapped wetlands that we have in Vermont, that's one measure. And of that, I think we're maintaining. Any other questions? So you just, you said, right now you're not required to submit the shape file of a mapped wetland that happens through a permit process? Unless there is a determination on that element at the same time. So yes, the wetland has been unmapped as a class. If it's, if a determination has not been previously made on that wetland, then you are required to submit the shape file. Whether that shape file is not necessarily being added to the VSWI mapping layer that we all use in seasonal capacity. So yes, and I think part of that is the recognition that wetlands change and you have to have a redilination every five years. But, you know, there's so much data that I've collected in 11 years here that if that were on those maps, it would be much more visually helpful. Thank you. Why isn't that put on the maps? I think it's lack of funding at a lot of times. I've met a lot of people, there's only six of them, and it's insane. And the unrecord doesn't require it at all. Any other questions, Harvey? I thought I heard you say, as far as the loss of wetlands, we were kind of holding them steady through the wetlands. We had a presentation at the first meeting that says, and I think this was Secretary of State, we've lost 35% of our wetlands since 1988. And I know you can't answer their question, but at some point I hope this committee digs into that a little bit and kind of documents how many wetlands have been lost. I see that even as another GIS layer of the impact, an impact layer, so that we could ultimately overlight wetlands maps with wetlands developed and cut it out. Any other questions, Matt? If we're going to find out and gain more information about what is actually going on, what are we going to do in the meantime? Are we going to have a moratorium tied down, or are we going to wait for all the information to come in? And meanwhile conduct business as usual. What would this committee recommend? Are you asking me or asking me? I'm saying, I think that's the sort of, the witness has shared with us the dilemma that's before us. Just to say, we're going to go with the status quo until we have evidence that the status quo is inadequate in not serving us well. Or, we're going to say until we answer this question, which may be a permanent question. What are we going to do? I don't think it's fair to ask the witness that question. I think that's the question that the witness is posing to challenge that is being posed to us. And I conclude based on the witness's testimony. That's why we were appointed to this special committee to try to weigh that out and come up with suggestions to present to our fellow legislators. So, you know, I think that's our decision. Thank you. We're running quite a debt behind. Art, would you like to come up? Sure. Karima is a hard act to follow. So, my name is Art Gilman. I am principal of a business called Gilman and Brakes Environmental Incorporated, located in Bury. We've had about 30 years of experience with wetland regulations. In fact, I was actually consulted prior to the 1990 rules. Actually, it was my great year here. So then at a long time, I've worked both with the state and with the core over those over those many years. Many different clients, utility companies, municipalities, private developers, landowners who just want driveways, things like that. I will say I've had relatively little experience with agricultural community, largely because they have been examined from many of the sorts of projects that I am involved with, you know, development projects or transportation projects, bridges and things like that. So I can't talk too much directly about agriculture. But I would say, I think one of the points that not just myself but other people I've just spoken with and the working group that we had those 11 meetings with, I think most people agree that the definition of wetland that the federal agencies have come up with, which is done as a result of the Clean Water Act, is a very good definition and we should retain that definition of what a wetland is, which is a scientific explanation of what wetlands are. That's the federal. That's the federal and that's the one that the proposed rule would align with. The one the proposed rule that the agency has submitted. That would align that with the federal rule. That has had nationwide experience for more than 30 years. I think it was adopted in 1984 and it's good anywhere in the country. Scientists can understand it. They can apply the three criteria of soils, plants and wetness to determine whether something is a wetland or not. Clarity is a little more difficult to achieve when you talk about not what a wetland is, but what the jurisdiction is. The U.S. Army Corps of Engineers has jurisdiction over all wetlands. There's a small category they exclude called isolated wetlands, quite a small category. But otherwise, they have jurisdiction over wetlands and even though they interpret functions and values, they don't rely on functions and values for their jurisdiction. Their jurisdiction is placement of dredged or filled material in waters of the United States, including adjacent wetlands. So that is their jurisdiction and they're very clear as to what their jurisdiction is. The state's jurisdiction is based on the functions and values. As Laura pointed out, there's a long 10 or 11 page form to fill out now to determine whether it is jurisdictional or not. And the proposed change would be that the presumptions are final. In other words, if you presume it is, then it is, with the possibility of petitioning to show that it is not really, and then you change the classification after that. So that's the clarity of the definitions versus the jurisdiction between the two. As Laura stated, they are separate. People in Vermont have to go to both the state and the Corps if they want to have a project that includes wetlands. So they're largely overlapping, but they're not totally overlapping. Should they be more in line with each other? I have felt that in general the Corps does not permit things that the state would not permit. In other words, we frequently have projects where we need both permits and we get them both. One from the state and one from the Corps. One of the major differences is that the state has the 50 foot buffer zone around a jurisdictional wetland, which the Corps does not have. The Corps' jurisdiction stops at the well and boundary, but the state's jurisdiction for a significant wetland extends 50 feet outside the wetland with the idea that we want to protect the wetlands. If you build your buildings right up to the edge of the wetland, then they can be subject to degradation because the buffer zone isn't protected around them. So there is clarity in terms of the definitions and generally in terms of the jurisdictions, but the people who know the clarity are the regulatory people and not the people who are being regulated. I heard the language. So I think that's perhaps what Carina was going to, was that we do need more education on what wetlands are and how to recognize them and how to deal with them. So it obviously is a difficult task because a lot of people are not interested in particularly and they may have motives where we just need to get across to that field so we just need to put that road into it and not really thinking about the fact that it may be a jurisdictional thing. So it is an extremely complicated situation and as Carina says, sometimes we get after the fact, we have to get after the fact permits for somebody and so forth. And occasionally we see violations. Once in a while we see violations that are pretty intentional violations. I think people knew that they were feeling well as they were not supposed to. So it's a big step to learn and understand these various things. So I can understand why the committee made it. Karen, would you just say again what you did regarding the Army Corps, not so much function and values, but their jurisdiction is the placement of dredged or filled material in waters of the United States including adjacent wetlands. And it's not so much of an issue here in Vermont where most of our wetlands are adjacent. Either physically adjacent to a stream or biologically connected. There's been court cases decided by the Supreme Court over a course of time pushing back against the feds, against the core for what their definitions mean and so forth. And I guess there are two that were sort of the major ones. Mike Adams from the court can describe these to you. But in general it's an uncommon situation where the core in the state of Vermont would say that it is not an adjacent wetland and they don't have jurisdiction. Most of those cases would in my experience be not significant wetlands as functions and values analysis of the state uses. So I don't think that is a very real concern in Vermont that the core does not regulate a lot of wetlands. Thanks. John. So the definition of waters of the U.S. then? Yes. It's not, does that include any waters? Well as it's currently construed, and this may be the, what's sort of the current administration's possibility of change, is that it extends to if there's a significant nexus to a navigable water. And it's currently construed by the core as including all permanent streams and intermittent streams that flow to the permanent streams like the adjacency to any of those, to adjacency to the intermittent in any perennial stream. The definition of stream is a little pithy, but in general anything with a bed and bank configuration and a mineral bottom is a stream whether there's water flowing in it today or not. And you can go out on many hillsides in the state of Vermont and find these small streams that you can see the bed and bank configuration and not a leaf line bottom, but a sand or gravel bottom, rock bottom. Any other questions for our? I have a quick question about the buffers. Yeah. You know, we've heard elsewhere that wetlands are not, that they move and shift a little bit. Yes. Does that, is that where some of the logic around the buffers comes in and do you think? No, I think mostly the logic of the buffers was that particularly for wildlife habitat, wildlife frequently walked around the edge of the wetland and they want to be, there's a lot of resources in the wetland, but a lot of wildlife trails are right around the edge. And you want to protect the cover, you want to protect the overhanging shade for fish habitat. You want to have a place where the uplands can attenuate pollution coming into the wetlands, things like that. So it's really, it's not, it's not based on the potential movement of development boundaries. And so you mentioned that this is a distinction between federal and state. Yeah. It sounds like you think maybe we're on, it's a wise distinction. We're more protective of wetlands than the federal people are, I guess. And as a consultant, is it harder to get one permit than the other or is it both fairly simple, very difficult? The, I guess I would say I haven't disagreed with any of the decisions made by the state or the court. I think they both do their jobs very well and when they decide to issue permits, the ones that they do issue, they both generally use the same phrase we heard before, the mitigation sequence. In other words, and going towards the least environmentally damaging alternative. Under both regimes, there's a requirement to avoid it if you can, in other words, don't go in the wetlands if you can, or minimize the wetland, which oftentimes we see, for example, in side slopes of roads, bring your road in tighter and don't have wide slopes. Pull your development back out of the wetland or even out of the buffer zone as far as you can and still have it a viable project. And in general, sometimes it seems like the core has a different process and it's faster, usually, because they have a deadline in their rules of the time frame. Once you submit a complete application, the core has a deadline, so it is generally faster. The state has been up and down. I once graphed the times that it took to get various permits, state wetlands permits in our office, and it varied quite widely. Occasionally, as little as six to eight weeks, and once was more than a year. Do you say a year? More than a year, in one instance. But that particular one was in the early 1990s. No, but you're graphed. That was 10 or 12 years ago that I did that. But I would say that it's not just the regulatory office that's dealing with it. Vermont law requires a 30-day public notice. So there's 30 days baked in that is not baked into the core. So the wrong way is to notify people, and it's not baked into the core. I can't speak to that. I know that the agency is struggling with their efficiency. And as Laura said, they want to make it simpler so that they can be more efficient. Hopefully we can. Other questions? Chris, did you have some? No. Jackie, did you want to testify at this time? Again, I also understand that you're running out of time. So I would be here all day if you'd like to continue to the next witness. And if you have time again, I'd like to do that. Well, I think we have time because the next issue is we may be getting caught before the horse and we need to talk about that. So I have important questions. Thank you. Good morning. My name is Jackie Folsom. I'm the legislative director for the Vermont Farm Bureau. We have in our policy that we wish all regulations regarding agriculture remain in the agency of agriculture. And that's what we've testified to consistently throughout. However, when the administration sent in language this last session to the House and committee regarding changes in the wetlands ruling, we also supported those, as did Secretary Anson-Tevitz and Secretary Julie Moore, in regards to the fact that we are looking for more clarity in the definitions. The fact that they are subjective as opposed to objective just seems to make this a challenge for everyone, not just agriculture, but we thought that that was a good beginning for a discussion and we were supportive of that. The other thing we were excited about was the fact that DEC offered up free delineation services for farmers this summer and talking with Marley Rube from the agency. There were about a half dozen people that took the opportunity to have that happen. I don't know what the outcomes were and certainly probably talking with Marley would be a good idea on that. But there was movement as regards to that offer and farmers taking advantage of that. We are just in the beginnings of our Farm Bureau meetings and I told Senator Starr that we would let our members know, which we did if you have challenges with wetlands issues or if you had successes with them. We'd like to hear from you. We've just finished four meetings and we've got eight more to go within the next two weeks, so I'll be attending those to find out if we have any significant challenges or successes with our members. One person I was able to speak with was Brian Kemp who was here at the last meeting and I believe he's talked to Representative Smith recently. He is having challenges with culverts on his land and the challenges are occurring through NRCS. So he has delayed any contract negotiations with NRCS in regards to completing a change on one of the culverts that needs to be repaired because they are suggesting that he might need to put in a bridge as opposed to another culvert and the cost of that would be prohibited. So he would love to have the opportunity to speak with the committee. I believe that there may be an opportunity for him to talk with you at an Addison County meeting and I encourage you to reach out to him and make sure that he's on the agenda that day. And for the record, Vermont Farm Bureau was not part of the stakeholder group. We were not asked to be on that group that was through ANR. So he has an NRCS problem though, that's not the real jurisdiction of the... No, that's true, but you have been hearing that there have been challenges between NRCS and some of the other things that are going on, so it is a challenge for the farmers. No question. Yeah, I don't know, it wasn't Brian that I talked with, but one farmer told me that it was $50,000 to change the culvert, but they were getting pushed to do a bridge that was $250,000 to $275,000. And he said, you know, a quarter of a million dollars is just way out of reach for a cost. Well, in Brian's case, there are culverts, there are three culverts that have been pre-existing. And I believe his issue, obviously his issue is, you know, if we don't put the culverts in, the challenge to the land is going to be intense because it'll get worse. But he's had to stop doing anything with the situation because of the challenges. Hi, John. So Jackie, our commission, we need permits in federal and state, and so in this NRCS case, would, even if we worked out those challenges, would there be a DEC permit? I am not clear on that, I think you have to talk to Brian. He'll probably come to me as soon as he can. So there'll be opportunity. He did testify. No, he was just here. He was here at the last meeting to testify. But he's looking forward to speaking with Chris. I'd be curious if you can help us as you're talking to members to understand if there's a predominance where these challenges show up, whether it's cropped land or grazing or development or roads. You know, maybe it's the whole package and we'll just have to accept that, but if it was coming up, you know, predominantly in roads, that would be helpful to understand, I think. Sure. If you're able to glean that, that would be really valuable. I'd be glad to make sure that we have that information. Anything else? Thank you very much. Thank you, Senator. And Heather is going to be at Franklin County meeting, like, only later on. The 11 o'clock issue that we have on schedule, any other gained thoughts and ideas in regards to... What about this person? Heather? No, Pat O'Brien. He's at 10. A human agenda. 1024, we have Pat O'Brien. Pat here. Yes. Why don't we... Yeah, we're doing well. Come on up, Pat. I've got a different agenda. It's okay. Good morning. Thank you very much. My name is Patrick O'Brien. I'm here on the Vermont Home Builders Association. And I appreciate your time this morning. And I think what I'll do is I'll just... First of all, for those of you who've never been through the process, I'll try to enlighten you a little bit. But first, I grew up. I was born and raised on a dairy farm. And then pretty much all of my adult life, I've been involved in the building and homes and buildings. And I have... I do recall when I was a younger man, meeting Dr. Bill Countryman, who I believe met... Well, pretty much wrote the first lot in the rules. And fortunately or unfortunately, I've been involved with the rules and seeking permits for many years. So I'm pretty familiar with it. Certainly, if you want stories, I'm the guy to talk to. But anyways, just first of all, I'd like to say the process. And the reason I want to explain the process is because while the application fee to fill a wetland or a buffer zone is relatively small, one of the challenging parts is, as previously mentioned, is the time intake. So typically the way it happens is you hire a consultant when you do a project to delineate. And he comes out or she comes out and they delineate the wetland. And then a day or a second consultant or survey will come and pick up that survey and then they'll make a map of it. And then they will typically submit that to the state for clarification. And then, usually after a number of weeks or a month, the wetland biologist from the state will come out and check or verify the delineation. And oftentimes, even if it's only a matter of a few feet, that delineation is adjusted. And typically you have your consultant there. And then what happens is you bring the survey or back out to remap the wetland. Thank you very much. So once that second round of mapping is done and if you're going to be impacting or applying, you then have your consultant fill out the large application and send in the applicable fees. Oftentimes additional information is requested and your consultant sends it out. The point that I'm trying to make is that in the event, it's not all to be great if there are no fees at all, but in the event through this process that there's any suggestion that the fees be increased, I would respectfully request that they be pushed back on that because as I first said, the fees are, if you read it, the fees are not astronomical because typically what you're proposing to fill is pretty small. But what gets very expensive into the thousands and thousands and thousands of dollars are the consultant fees and the surveying fees that you have to pay in order to go through the process. So the actual fees in the application is very small. So that was the first point I wanted to make. Now, why do we have to keep switching you as a developer? You get your engineer, your consultant, your delineator. Then you have to get the state delineator. Why couldn't these people be licensed to do their job correctly? And then if they do mess up, they get a fine or lose their license or whatever. So we haven't got this give and take back and forth weeks and days and months taken the one way. That, in fact, was part of one of our bills was that there, and it was at the request of Julie Moore, that we begin the process of certifying or licensing, I forget the term, wetland scientists. So hopefully we're going to be moving towards something. Senator, I do not agree with you more. I think you would find a large support from the homeless association, not only for the wetlands issue, but across the board for a lot of these permits that are required from the various agencies. For the life of me, I for years have wondered why we spend money at the state level in time questioning these professionals who have spent years and years and years and money getting their educations. So very good point to that. In regards to moving forward and trying to figure this out and making it so it's clear, there are a few things that I hope that you all pay attention to. And one of them, and I do believe there's movement on this issue, this issue from the Wetlands Office, and that is, as you may know, the stormwater permit, the stormwater division, they have been working very hard to administer their rules and come up with new rules, but mostly as it relates to cleaning up our lakes and rivers. And in recent history, I had tried to get a project approved wherein the stormwater, after it had gone through its cleansing mechanisms, in other words the forebays and the ponds, and then it discharges to a point, we had proposed that it discharge into a wetland buffer, class II wetland, which ironically was simply initially a dug pond used for irrigation, which is another whole subject. But we weren't allowed to do that. We were not allowed to use a wetland buffer for basically what would be high storm events, flood storage. I believe there is movement on that issue and I believe that the wetlands division is looking closely at that, because I think and I hope that they realize that these buffers and maybe even sometimes these wetlands may have to sacrifice a little bit if we are actually going to do our best to clean up the lake. And this mostly I think what you'll find out is in retrofit situations where you have existing developments that are trying to comply with new rules. So I just would like you to pay attention to that. Excuse me, was yours a retrofit situation? No, it was in the state designated growth center. So one of the things, and I don't know how this is all working, I know this is rulemaking, I don't know if at some point there's going to be some adjustment leads to the statute, but one of the things I would like you all to remember that I do believe that when it comes to our designated growth centers that we should not be, there shouldn't be automatic buffer zones around a classroom to wet in the growth, in the designated growth center. No, we, you all work very hard in coming up with a growth center statute. And they unfortunately, there were sacrifices that had to be made with our environment, whether it be Primag or any of these criteria that we have to address. And so I'm simply saying in my little humble opinion, I believe that if we do want sprawl to stop or be reduced in development of these state designated growth centers that buffer zones around classroom weapons should perhaps come into a different level, a lower level of scrutiny. Just to keep that one on your radar. In regards to the, I'm going to struggle with a term here, but historically the way that I was always taught was you have a wetland on your property if it consists of two of the three indicators, one of, and I may be wrong on this, but I'm sorry, one is, you know, the plants, if you have wetland plants, that's an indicator. If you have hydric soils, if you have wet soils, that's an indicator. And also the soil composition, what is the soil made of is another indicator. And I always always taught that if you have two of the three, then you have a wetland and that's how you create your delineation. Now, when you start adding into these presumable non-biological factors, for example, the Vermont Wetland Inventory Map, which on most occasions, because you have to remember, unless the map was one of those that was field verified, made its way through the system and was put on the map, that wetland is there because it was likely taken from a satellite position. And so most of the product I worked on is what we have found is that map is vaguely incorrect. And so what happens is you own property and all of a sudden because of this map, it shows up that you have a wetland and all of a sudden you're in the wetland permitting process where that wetland may be not even on your property, it could be 100 feet away. So it just makes me from experience nervous to think that we would be using a mapping system that's created by anything other than verified field work to map wetlands. Can I ask a quick question? Yes, please. So if there's kind of a chicken and egg problem that seems a little bit, if you don't have a mapping system that wasn't triggered by the development process, then how do you see more heads up that the mode of development is always going to be based on trying to get some product done? So there's an inherent tension between someone once gets something done and sort of self-reporting. Maybe this is a wetland I'm not asking for delineation. An accurate mapping process would at least give everyone a heads up and clarity from the outset would save every time an illustration. I couldn't hear what you were talking about. The key word is accurate. I can only imagine we don't have the millions of dollars nor the staff in the wetlands division to create this accurate mapping. I don't know what the answer is. I'm just saying that the Vermont wetlands inventory map that are non-verified wetlands should not be used to determine whether something's a wetland or not. But in that same case, if we had our delineators licensed when you hired your consultant as a private developer and you hired your consultant, they would go and walk the property and, well, this could be a wetland and they would do the delineation right then. That's true. I mean, you've got to suck gas what the state may do The long and short of it, another example or analogy is that if I were to look at a potential piece of property that was for sale, I have learned not to rely on the Vermont wetland inventory map to see whether there is or is not a wetland because it's just not accurate enough and I don't even pay attention to it. There are other ways for me because I know what a wetland is. I know what a wetland is most of the time because I've been around so long and you just know. But I think one of the issues that I'm always fearful of with our rules and our statutes is that I'm from Chittenden County. Thankfully, I'm well educated and have a lot of experience. And there are plenty of builders people of all sorts of industries who don't have any experience and may not know and don't know the rules. I'm not just not talking about wetland I'm talking about stormwater archeological and everything and I just don't know somehow the state could do better education I just don't know how it's going to happen. I know you guys are on a time crunch so I just want to reiterate a few things. The buffer zone in the Gold Center I'd like you guys to keep that on your radar. The stormwater I would like to applaud the agency if in fact what I have heard is true that they are working with the stormwater division. We spoke about the inaccuracy of the mob wetland inventory map. The last thing that I'd like to speak about is that you may recall several years ago when it comes to wastewater and water supply rules or septic systems we now have what is called an overshadowing effect because what you may remember is there were issues around the fact that when you want to site a septic system on your land there's an isolation system where you have to stay away for example to drill a well. So what the state did is they came up with a ruler's statue that said you shall fill out a piece of paper and you shall send that to your neighbor if you are overshadowing your neighbor shall sign that piece of paper acknowledging they understand you're overshadowing and that shall become part of your wastewater and water supply application. So you're notifying your neighbor that you are encumbering his or her land with this isolation distance. For example, if the neighbor in a year or so was planning on putting a well in that location he or she can no longer so they're acknowledging that through this notification process. I thought that was very, very well done. The same thing unfortunately happened to me recently on a piece of land that I own. I was fortunate enough because I know the business. I noticed the neighbor had was doing something and so they had their weapon delineated. The weapon delineation went along my border on a piece of land that at some point in the next few years I was going to apply to build a house on. I had had my land delineated. There was no weapons on my land. You don't delineate the neighbor's land. It's illegal. But thankfully because I know the process I went on the environmental notice bulletin I saw that the wetland had been delineated as a class 2. All of a sudden I knew what that meant. I automatically have a 50 foot buffer zone on my land. My land is immediately encumbered by that class 2 delineation. I only knew about it because I'm in the business. So moving forward I would like to charge the agency to coming up with a similar mechanism like we do with wastewater water supply. So we wouldn't unfortunately and automatically encumber the neighbor without notification. Certainly right now the neighbor gets notification in the application process. But unless the neighbor is astute with the rules and can correlate the fact that oh, even though the wetlands on my neighbor's land doesn't show anything on my land the application does not require that buffer zone be drawn onto the neighbor's land. I think this is a huge issue of attention. Yeah, it would dispute with your neighbor and he had a bunch of wetlands and he knew that I'd be a good way to get. Absolutely, unfortunately in this instance because I was in the business I caught it and I subsequently working with the wetlands office figured everything out. I still have the buffers on my property that I'm going to have to pay and go to go to process for which is unfair but at least I know about it. At least I can budget for it and plan for it. Again, not fair. That's one of the reasons why I bring it up. That should be a question that we would want to find out about the wrinkle in the public education that I haven't understood but what about that is unfair other than it was by chance that you figured it out. Again, I'll use an analogy. Let's say that you owned a building block that you were going to plan on building a house on and let's say it didn't have any wetlands on it. It's 100 by 100 or 10 acres, whatever they think, right? Do you think it's unfair that the buffer could cross property lines? I think it's unfair that the buffer can cross property lines without you being notified that it actually unlike the septic rule you're not going to be able to repeal this is why I'm trying to uncover it. You're not bothered that the science of the buffer doesn't honor property lines. You're talking about a process for notification, right? Correct. That's what I want. Still, if you add that 100 by 100 law and 50 feet of it was encumbered so now you've got a 50 by 100 law on that. Well, typically well, I can only speak to my instance typically and thankfully my law was up. It was not wetland, right? In a perfect world, if I had a previous notification, I would have gone to the neighbor and said if you want me to sign this piece of paper acknowledging it then you're going to have to pay for my application fees. Yeah, because it's not cheap. No, it's not cheap. So there's a lot more thought in order to develop. John? I was just going to ask so this type of development doesn't require a notification to neighbor and property. Yes, I believe right now the way it would work. This is what happened to me. I got when the wetland application is filed the neighbor, the adjoiner does get notification and what the piece of paper basically says is geez, by the way, your neighbor has applied for a permit. Please visit www.environmentalnotesbulletin.com to figure out what he's doing. So fortunately again because I'm in the business it was fairly easy exercise for me to determine that. But if I'm not in the business and I read this piece of paper most of the time I don't know what's going to happen. You're really going to throw the trash and not pay attention to it or you're going to go online and get frustrated or you're going to, I don't know what you're going to do. You're going to hire a consultant like that. The thing is the neighbor wouldn't have no reason to hire a consultant if his law is all of them. Right, exactly. Like I said I had my name delineated and there was no wetlands. Let me back up. There were wetlands further down that I was not planning on impacting at all and I needed to know where those were. But on the other side of the property was where this overshadowing took effect and all of a sudden I've got to go through pay all these fees in an application just, you know, so I think you guys can get to the point. Yes. Something you said earlier back there reminds me of a question actually before I hand it. She or a owner thought what kind of department you would need or who's on the ground of experts and money to do a comprehensive delineation of all of the class due by things like Vermont. Would it take 100 experts 10 years or is it something that you had twice in the amount of employees you could do? It would be so labor intensive that I haven't even contemplated that. There's also the issue of property access where if you see hospital on the property, there'd be people who would stay now. We are working on an effort in improving our aerial interpretation of wetlands. We just completed some work within the Mississippi Basin with all of the new technology out there. We can get a much better sense of where that are in that project. We were able to detect over 11,000 additional acres of wetlands that weren't on the map before. So there are ways for us to make improvements and I do have some numbers on what that will come of. Chris? Thank you for raising the wrinkle problem here and overshadowing. Since this the physical facts on the ground and creating overshadowing and whether you knew about them from your own experience. Does it make sense to have someone delineating your own property assessing whether or not any of your property is in comfort because you are adjacent to a wetland? That's a great question and I think the answer is yes. If your experience is wise enough to even ask that question which 98% of the population is not that's the issue. It has to be procedural. Any other questions? If not thank you. If you ever would like me to testify on any of this stuff you have you can reach me through the home religious association. One last question. Are you taking written testimony on this particular subject? Yes and that should go to Linda Lehman. Is there a deadline for such a thing? Well our last meeting is December. So it should come prior to it should come during November because at the tail end we've got to put our thoughts in order and draft up hopefully something to clarify and help out with this whole issue. So anytime from now until the 20th of November we'll be fine. Well thank you all for the effort you put forth for our great state. Thank you Patrick. For now so we're down to wetland rights at the federal and the issue is questions that we should develop to ask the federal warning court and what are your thoughts in regards to that and why we point that in there because we try to get them for this meeting but their supervisor the regional general came up the general for the the general is in California and they had to call me for the general so yeah that happens to us every year so what are your thoughts on doing that at this time or move on with our witnesses and do it at the tail end what are your thoughts on this? Well I think there's plenty of questions I was wondering part of our at 64th which was clarified by John Agriculture and the Department of Agriculture revamped their REPs and so I'm looking at that piece and NRCS is the agency that we normally work with but I know that the Army Corps is the one that has the donation process and I'd like to maybe ask questions about coal and NRCS comes out and delineates some of our land I believe they use a definition or a protocol or whatever you call it they're standard so I think it's important that we understand both the agencies that are currently involved with NRCS so should we do that though at this time or move on with our witnesses and try to figure out what questions at the tail end of this meeting when they're just asked around what we should ask I would prefer to have some more information about the Army Corps and their process so that it would help us formally answer those questions because right now I know and understand some of the ag issues but I don't know exactly how the Army Corps proceeds and what they do I would like Michael, you did a nice side-by-side with the state program and NRCS last time and I don't know how to correlate with the Army Corps but it would be nice to have some background information on the Army Corps before we start to formulate our questions Any other opinion Chris? Yeah, I agree Representative Smith understanding what, for instance what projects what projects the Army Corps will get versus what the states will sort out how often they're involved in assessment versus state manner or both I agree I think we need the basics before we can develop our questions and I'm ready to hear from the next witness to answer your questions Yeah, I think it's kind of like a building deal at least but it's a little bit different than currently going upwards so we don't want because we'll move on to our advocates that are here and Bill you guys are you folks going to one at a time? Bill? Before I get started I'll just pass around copies for each of you of three different documents that I also have a copy of for the record that I'll give to Linda and I can also print by links to these in my testimony and then there are a couple of other bigger reports that I'll be referring to that I can also provide links to Good morning Chair Starr, Vice Chair Sheldon members of the committee, thanks very much for your time and the opportunity to testify this morning for the record my name is Phil Huffman I'm the Director of Government Relations and Policy for the Nature Conservancy here in Vermont and I'll be testifying in advance of a couple of other folks from the Environmental and Conservation Community, John Groveman from Vermont Natural Resources Council and David Mears from Audubon, Vermont I'm going to try to concentrate my remarks if it's okay with you on so the Nature Conservancy's perspective on wetlands why we think they're important how we've been involved in helping to conserve them and then sharing what I think we think is some important recent evidence and new science about wetland functions and the values that they provide to our society here in Vermont you may not be aware of and then at the end I'll offer just some quick thoughts that tie into the policy process that you all are digging into so deeply and then I'll leave it to John and David to dig in more on the regulatory side of the program which is something that we're not sort of on the forefront of the Nature Conservancy and I don't have a written statement at this time but if it would be helpful I can sort of clean up my notes and get that to you after the fact so okay great I'd be happy to do that so just by way of getting started I think you all have some feel for us the Nature Conservancy is an organization but let me just touch on a couple of quick things that I think are relevant just as part of the backdrop for why we're interested in this issue and engaged in it here in Vermont as you may know we're a global conservation organization non-profit that's dedicated to conserving the lands and waters on which all life depends so that's human life as well as all the other species native biodiversity that we share the planet with one of our hallmarks certainly here in Vermont and everywhere where we work around the country and around the world is that we're a science based organization so we rely on the best science that we can gather either ourselves or in collaboration with others and drawing on science work that others are doing to inform our own conservation efforts and the work of others so we try to make our science available to others to help inform their work guided by that science we try to create innovative on-the-ground solutions to some of the biggest challenges that we're facing here in Vermont and around the world so that nature and people can thrive together so it's really about this intertwining of nature and people we're not separate we're all in this together I don't think that's news to any of you but just to be clear that that's where we're coming from we're work all around the country and in all 50 sorry I mean more than 70 countries around the world now and here in Vermont we're looking forward to celebrating our 60th anniversary next year and as we do that we're proud to be able to say that we've had a hand in helping to conserve more than 300,000 acres of land and 1200 miles of shorelines around the state and to own and manage more than 55 natural areas scattered in I think probably every one of your districts as well as other parts of the state as well as far as wetlands go we see them sort of an overarching statement is that wetlands are vastly under appreciated and I think probably not well understood natural system and resources that really have outsized importance both ecologically and for people relative to their pretty limited scale and abundance on the landscape here in Vermont and that's we're trying to get the word out more build people's understanding obviously education and building understanding is a theme you've been hearing this morning that's a key one from our perspective as well on all of this we certainly would affirm the broad range of values and functions that wetlands provide you've heard about that from Laura earlier secretary more touched on it in her testimony at your last meeting I won't take the time today to sort of walk through those but just to say that we really see the whole breadth of the values and functions both for nature and for people that wetlands provide as being central to why they're so important one thing that I did want to touch on that I think it may have been mentioned but not really highlighted and I need to get back to you with more precision on this but is that obviously climate change is a hugely important topic for all of us here and beyond and wetlands as part of their sort of outsized importance have my understanding is from the science that they have sort of an outsized importance in their ability to sequester and store carbon relative to other natural systems so it's something that I think most people don't think about oh you know wetlands maybe don't have a role in that actually they do and it's maybe bigger than what you might otherwise expect role in that so as I sort of wrap on that part of things I want to just refer you to one of the things that I passed around which is that it's a copy of the commentary from Digger that are sorry to say former colleague Rose Paul authored several months back about its broad brush sort of popularized approach but that simplifies some of our perspective on wetlands their importance for economic values natural recreational resources and whatnot and say Rose is our former colleague because she retired at the end of August so we're feeling her absence on our team for sure because of their great importance we at the Nature Conservancy have been involved in protecting and restoring wetlands here in Vermont for decades actually and I just got information a little bit ago we tallyed it up for this morning that our best estimate at this point is that we've been involved in helping to permanently protect ourselves and with partners somewhere around 27,000 acres of wetlands around the state so those are wetlands that will be secured from development in the future without having to go through any permanent considerations or anything like that Does that include fishing? Yes Absolutely so those include both properties that we continue to own ourselves and that we've done in cooperation with various state agencies, Fish and Wildlife Forest and Parks and with federal agencies as well so that's an inclusive number and within those of the ones that we've had a hand in include some of the highest quality wetlands around the state and ones that some of you I know are familiar with those of you may not be but those include the La Plata River Marsh in Shelburne so in the heart of Chittenden County really special place if you haven't been we should go for a canoe trip sometime Chickering Bomb in East Montpellier not far from here happy to go for a walk there with anyone who wants to the Dennis Pond Weblands up in Brunswick up in Northeast Kingdom part of the former champion lands there and then ongoing efforts that we're integrally involved in helping to conserve and restore the Otter Creek Swamps complex which is actually in Representative Smith, Senator Brays Representative Sheldon's districts it might leave anybody out but well and it's you know I think we all have some awareness about Otter Creek Swamps may not know that it's actually the largest wetland freshwater wetlands complex in all of New England so really really special place in a broader regional context and our work there is a great example of collaboration with state agencies and federal agencies we have a very robust partnership among others with the Fish and Wildlife Department to try to advance conservation there and I want to emphasize too that our work in all of this conservation and restoration efforts on wetlands as is true of all of our work is with willing landowners so this is not about telling people what to do it's about trying to work with people to find solutions to situations that they have I want to add a couple of other concepts that we think relate to and hopefully reinforce the value of wetlands why we see them as important we think about them in part as a form of natural capital that's a phrase that some of you may have heard maybe not which are a reference to living systems that we people depend on for survival there's sort of like money in the bank that we can live off of the interest but we get into trouble when we dip into the principle so that's a sort of a guiding thought for us in terms of wetlands here in Vermont we need to protect what we have try to restore what we've lost and contrary to probably many people's perceptions I think we think about wetlands as one form of working lands we know that ag lands forest lands obviously critical working lands for Vermont Vermonters for a whole bunch of different reasons wetlands are working lands too they work for us in some different ways in providing and this goes back to the functions and values that Laura shared before things like flood storage reducing the vulnerability of downstream communities as with the case for Middlebury with it being downstream of Outer Creek swamps and when Tropical Store in Irene rolled through and helping to address our water quality problems I'll speak more to that before but again just this notion of wetlands as part of our rich suite in mosaic of working lands in the state to provide a whole host of benefits for people as well as for nature and then we also think about protection and restoration as a primary form of what we at the Nature Conservancy and this isn't only to us I think but refer to as nature-based solutions so this is using nature to help address some of the big societal challenges that we have like water quality like flood vulnerability and like tackling climate change so again nature-based solutions the role that in this case wetlands can play in helping us to address those sorts of challenges and the evidence that we have from TNC from broadly and it's out there from other organizations as well as the nature-based solutions can actually often be significantly cheaper than more traditional engineered or sort of gray infrastructure types of approaches to the kinds of challenges that I was touching on so now I want to shift and just touch on some of the recent evidence and science that I think ties into this that helps to make the case for why wetlands are really important and why it's so critical that you all are going through a very thoughtful process before making any sorts of changes to the statute and regulations so first the monetary value of wetlands was highlighted in a report that was released about a year ago by the trust for public land that they did for us here in Vermont in collaboration with the rest of the Vermont Forest Partnership that many of you are familiar with the Nature Conservancy is one of the members of the Forest Partnership and so the report looks like this it's a big report I'll get you a link to it but this is the Vermont's return on investment in land conservation so it's not specific to wetlands it's about the ROI that the state has gotten from investments in land conservation from only the natural goods and services that have been provided from those conserved lands so things like water quality and protection or improvement, reduced flood vulnerability food production things like that wetlands were one of a whole host of land cover types that were considered in this study done by the trust for public lands national conservation economics deciduous or mixed forest grasslands things like that so and the estimate was and you know so these are estimates take them with a little bit of a grain of salt but it was about $590 an acre was the value of wetlands for the natural goods and services they provide in the form particularly of flood protection and habitat then you can also layer in things like carbon storage water quality and what not the value would go up from there and then I want to shift and focus for a few minutes on some recent research that was just published by the Gund Institute at UVM back in the springtime and this I think it was the second handout that I passed around has a one major that looks like this it's a actually a press release online but that we release jointly with Gund so this is the snapshot of work collaborative partnership research that we have commissioned with Gund over the last couple of years looking at trying to quantify the value that nature based solutions wetland protection restoration particularly and flood plain restoration can provide in addressing water quality and flood protection so this report again pretty hot off the presses was there's a published journal article that again I'll provide you a link to it's I have a copy but it's several pages long and pretty dense scientific stuff but the gist of that is that the work that the folks at gun did indicate that Vermont could meet about 15% of its phosphorus reduction goals for the Lake Champlain TNBL so 15% of what were required to do under the TNBL through wetland restoration so it could be up to that much and that's through restoring wetlands that have been degraded over the course of decades from various sorts of activities there are more than 3600 I think the total was of wetlands that were considered by the gun folks so it's a vast array obviously restoring all of those would be a huge undertaking but we think it really helps to illustrate the way in which restored wetlands can again help to address one of the key societal challenges that we have a couple of other things about this work that I want to just highlight one is that the gun researchers found that from the modeling work that they did that it appears that small wetlands have outsized importance actually in that restoring smaller wetlands that are close to stream networks can offer the greatest nutrient reduction relative to cost so I think as we think about the potential for changing size thresholds on what is or isn't considered a jurisdictional wetland and what not evidence from gun among other things I'll come to another bit of evidence in a minute suggest that small wetlands have a great effect and then there also was some sort of more smaller scale research that the gun folks did this is kind of preliminary but in the missus koi basin so the overall body and conclusions that I was referring to refer to the lake Champlain basin as a whole they did a bit more zeroed in research on the missus koi basin and preliminary indications are that the estimates of phosphorus reduction may be quite a bit higher than the 15% that I had mentioned before so more to come on that and so we're continuing to collaborate with them gun is working on this research more to try to get a clearer sense of exactly what the phosphorus reduction benefit can be from restoring particular wetlands they were looking at it sort of broad brush as a whole suite of wetlands but zeroing in on more site specific wetlands to get at the benefits that we provided the one other piece of science that I wanted to mention is another published journal article is even more dense than the gun one but I'll provide you with a link to it too if you want to dig into it it was published a couple of years ago and it really reinforces this point about the value of smaller wetlands and this was not a Vermont specific study but it gets at the same the same general idea that small wetlands account for disproportionately large fraction of the overall nutrient removal potential if you're looking at wetlands of different sizes what size is small? I thought you might ask that question so I think in that one under a half they didn't want to have so in that one I'll want to double check on this but I think they went down to as small as about 10 meters square so 20 square meters all together and then they had different size gradations up from there so it's pretty small yeah why are they disproportionately beneficial? that's a good question and I'll need to look into that more I was sort of looking at the top line conclusions that they offered in their sort of summary analysis so I think that's a very good question we'll follow up with that along those lines does that then the proposal to shift to is size based delineation and let people go crazy if it's small so does that concern you then given what you just said? it's not well if it's small we're not considering it a wet one that's the whole premise right? no there's like seven different criteria that have been outlined and we we have a half acre then what is connected to streams and we have a hillside with seeps which I think there's a size threshold for that and then there will be many size wet ones natural communities of any size to be protected wet ones with species but the first test is a size test right? they're all of that together if you meet one of the seven so my question stands are you worried about the size you're saying the science is saying the size is not relative to the value should we are we unwise to consider size as a criteria? I think it's something to think very carefully and proceed cautiously about which is what I would urge on this whole dialogue and I appreciate the thoughtfulness that you all are bringing to this along with the others who are helping to inform the discussion. I think a straight size based threshold on its own particularly one that goes towards smaller wetlands would be leave out smaller wetlands would be of concern I think if there's a way of layering in some other considerations along with size that could be helpful in addressing that and I will come back from our perspective like the functions and values consideration is very appropriate I think just given the nature of wetlands their complexity and all of that we appreciated saying that the challenge around subjectivity, objectivity speed of determination so I want to be clear like we want to work together with everyone who cares about this to be a part of the conversation of what an appropriate solution is can I just have a follow up? Sure, go ahead When you talk about the value of restoring wetlands I sort of think of our best approaches to leave wetlands alone in a sense but what does it mean to restore them is that usually we're moving a built object or can you just paint a little picture for me? Sure I think it depends that's part of this conversation but I suppose one end of the spectrum could be something like the removal of structures but that would be a much bigger undertaking and more costly just a bigger endeavor there are opportunities I think that are on a different point on the spectrum to restore wetlands that have been changed to a different use in agriculture for instance where they may not be serving as much of a useful purpose now with the changes in our climate with the increased precipitation the increased flooding that the chair was referring to before so lands former wetlands that had become farmland that are now more marginal, less productive than they may have been at the time that they were converted opportunities there and where it's in the absence of things like structures it's much more straightforward to try to restore something resembling a more natural wetland situation I want to be clear in saying that we're not proposing to bring back the thirty, what did I say, thirty six hundred plus wetlands that we're aware of at least that have been transitioned to other uses including agriculture we realize that would be a huge undertaking and that there are all sorts of different considerations in that but I think that what this all points to is just that in general is looking at the value of wetland restoration to help address some of the big challenges we're facing and to try to be really smart and well informed with science and strategic as we're making investments to try to move in that direction when you're talking about thirty million acres it's not just in the morning did I say thirty million I talked about twenty million oh, thirty yeah if I said thirty million that was that was a mistake so I think the thirty-ish figures that I've used so our land conservation that we've been a part of for the Nature Conservancy overall is about three hundred thousand acres in Vermont and then there are about upwards of thirty six hundred wetlands in the Champlain Basin so that's just the Champlain Basin not Vermont as a whole that have been identified as having been altered from their original state and this is not new data that we've developed or they've done to their using existing data and I think it ties into the statistic that Secretary Moore shared in her testimony last time and maybe someone alluded to earlier this morning about the thirty-five percent loss of wetlands from the original historic conditions a couple of centuries ago you guys in Addison County getting a little nervous starting not nervous at all oh, wetlands down there you got to be why haven't Chris I was going to ask for clarification I think you said thirty-five percent loss of wetlands statewide over early conditions that's the baseline that's thirty-five percent that's my understanding I would defer to the experts with the department the agency but that's my understanding well I know that last time we talked about something of course that chased down Chris Smith was bringing up earlier that if the inventory is converted far then it may be understood that so I wanted to figure out and then in terms of the TNPL addressing fifteen percent of the reading through wetland work do you know if the fifteen percent that just involves wetland restoration farmland both of them so yeah I haven't been on the front lines of the partnership with guns so I would defer to my colleagues who have been closer to it and we can get back to you with an affirmation or be happy to have one of my colleagues or potentially with someone from gun come to testify about this in the future but I believe it's about the more complete universe so it's not necessarily just ag impacted wetlands you're welcome yeah my question was almost the same but I'd like a little more clarification you said fifteen percent of the phosphorus TNPL could be met with wetland restoration so I'm thinking that would be not the wetlands that we've already restored but the ones that we could restore in order to meet that fifteen percent and that gets back to earlier questions where are these wetlands what water sheds are in you know where they are I also when you mentioned that you know with the increased rain events over happened you know that is becoming more marginal ag land it's out there and I'm very concerned about Addison County we've heard in testimony that three characteristics that make up a wetland or define a wetland and I know that a lot of the lands that we have are on hydro soils and I also know that we've had an incredible rain this year a lot of crops are being planted and a lot of crops right now are going to be struggling to get harvested because of that additional water and I'm just wondering how you know we want to deal with that and recognize that because that's going to have a tremendous economic impact because we're not just now Addison County but in the state so I'm just trying to understand how we do that and I applaud you for the work that you've done I've seen quite a few of the restoration projects and you know they're good projects you know farm families that weren't involved were all in agreement that yes this might be a good thing for them to do so you know there's trade-offs there yeah I appreciate everything that you're saying and I think you know it's complicated I think that from our perspective this new science from GUND reinforces our sense of the opportunity that Welland Restoration does offer to deal with water quality deal with flood resilience and deal with some other societal challenges absorbing more carbon things like that and providing better habitat for native species and we recognize we're very sensitive to and sympathetic to I would say as an organization the challenges that the agricultural community is facing in Vermont right now I want to be really clear about that so and we see working in the kinds of ways you're just alluding to in collaboration with landowners to find a solution this provides some financial compensation potentially to help deal with the squeeze that they're dealing with for a whole bunch of reasons and to get to beneficial outcomes the sort of mutually desirable outcomes is very possible it's not the silver bullet as far as getting to solving the water quality challenges or meeting the TNBL it's you know up to 15% on some further research to be done but it's an important component and one that we see can be very cost effective both in the short term and then also in the long term I think as Laura alluded to before with wetland restoration or with wetlands natural systems they don't require maintenance unlike human constructed solutions and so if we do it right at the beginning we can let nature do its thing and provide these benefits over the course of a long time now we haven't had VHCB we're going on land trust but I would think when they purchase the development rights on land which has been a tremendous amount that those wetlands in those properties that they bought the development as you think those would have been set aside to be conserved and now you can't develop environment in a wetland really wouldn't they have been set aside to be preserved I think it's a really good question ultimately I would defer to VHCB and VLT to give you a definitive answer as the ones who have been on the front lines of that work more than we have I think again it probably depends as frustrating an answer as that is that I think some of the easements and what not that they did were from several decades ago when there was much less of an understanding about all of this and so the provisions in those easements relative to these issues may be different and maybe more flexible than maybe the case more recently I think that at least in more recent easements it would tend to be providing for protection of existing wetlands but not necessarily restoration of any wetlands on the property that may have been altered for whatever purposes in the past we'll try to get it done John? I had a question about birds and science-based explanations too so we can't lawyer a sheet here 80% of the US bird species don't buy wetlands for breeding habitat and then Secretary Moore in the last time said more or less wetland wetlands in Vermont have been relatively stable we lost 35% historically but in the last one year through the years it's been relatively stable and yet we've seen this really steering decline in bird populations like we were to the third so what's going on there as far as it doesn't seem like habitat loss is going on in any way of their breeding grounds and yet there's a little decline Again, great question I appreciate your asking it ultimately again I would defer to others who are more bird experts than I am and David Mears he's here yet he will be soon as you know the head of Audubon in Vermont so he can maybe speak to this they have some new information that ties right into this beyond the information but my hunch is that the decline in bird populations is maybe probably partly tied to what's been happening with wetlands across the country or across North America and then you know Vermont's a small part of that much bigger picture and that there are a bunch of other factors contributing but I think I don't have the statistics on the top of my head but nationally we've been going backwards on wetlands in a significant way and so I'm sure that is not having a positive influence on the trends that are going on with bird populations So is Vermont seen as a leader in wetland protection and respiration compared to other states? That's a very good question and I will feel like I'm really well positioned to answer that in any kind of well informed way so I defer to others Can I wrap up really quickly? I appreciate all the time and all the really important questions that you're asking So just to close by transitioning a little more into the policy context I wanted to refer to the third document that I passed around two sides document titled Principles for Protection and Restoration at Wetlands So this is a document that we at the Nature Conservancy have been involved in developing over the last few months in collaboration with several of our environmental and conservation allies and partners the list of the organizations is on the back page so it includes BNRC and Audubon, Vermont as well as others and I won't take the time to walk through this in any detail now but I would really encourage you to look at it carefully it's pretty high level but there's some important principles in here about the importance of wetlands reinforces some of what I and others have talked about some of the threats to wetlands that you're I think aware of have heard about but then getting at some important points in sections three and four about how fundamentally from our perspective it's really critical for this process and any consideration of adjustments to Vermont's regulatory framework for wetlands to be as well informed by science as possible and I think particularly in light of what's happening at the federal level where that is not the case at least right now to anywhere near the degree that it has been in the past grounding ourselves in science here in Vermont is absolutely essential we also among other things would recommend the established policy here in Vermont and in many other places and nationally I think probably still the question is no net loss of weapons we feel like that actually is inadequate that we should be shifting to a net game policy and the way to do that is to protect what we have and to restore some of what we've lost and again the rationale for the restoration is for the whole host of benefits that wetlands provide for us in water quality, flood protection things like that as well as for the ecological values that they provide and then a third point and this has been touched on a bunch today but is from our perspective at TNC and with our colleagues you'll hear more about this I think that we don't think it's appropriate to rely on federal laws and regulations to provide protection and sound guiding framework here in Vermont that we need the state regulations and statute do and need to continue to provide an effective framework to fill more gaps relative to what's there at the federal level and then beyond that this has been moved to the federal lausering flux the current administration has actually gone forward with a significant shift in the definition of quote waters of the United States to reduce the jurisdiction that the core EPA have over wetlands in the U.S. it's been a big big deal over the last couple of years that is now taking effect and so I think it's really important that we provide a very solid ground here in Vermont to make sure that we're not following the suit and then also just as a practicality as overwhelmingly challenging I think it must be for our colleagues at DEC to administer all of this with six folks the core of engineers is an even more challenging situation there are two core staff for the entire state of Vermont and I'm not even sure if they may have some responsible legs outside of Vermont so I think we should be very careful about how much we're relying on the feds to do the job of protecting these irreplaceable resources so I'm going to wind it down there and I just want to reiterate we share the goals that I think you all have and everyone in this room has about trying to get to greater clarity and predictability and just understandability around all of this for folks that are in the regulated community and just more generally and that as we work towards doing that we need to be careful not to go backwards and really try to again be guided by science in helping to figure out what the best possible solutions are and to really figure out the best way to address some of these complicated intertwined issues and situations so thank you very much questions Bill one question that I have we did receive a report from our council what other states are doing and in that report I guess my question being a national part of a national organization those states that rely 100% on the Army Corps to do their regularity what are you folks doing in those states to help with our wetlands problems that we have nationwide so I was just wondering if you had any explanation of why in one of the smallest states in Vermont we've done I think pretty well and yeah what's happening in these other states where there's no state regulation yeah really good question I don't know and I can look into it more with colleagues from the Nature Conservancy who are working in other states around the country to try to get a sense of what their experience has been in particularly those kinds of situations I think it is an interesting one and I guess it's probably a result of a lot of different factors whether it's politics state budgets philosophical approaches so I'll try to get you somewhere thank you I guess we're all set thank you for your time thank you all very much John yes I know everyone you know pretty well from years before and I was a little troubled that so many of the states were looking at natural resources just from a utilitarian point of view services they deliver are the most deserving in their natural state because of their inherent value and I hope we don't always keep holding ourselves to the quick end to catch a dollar thousands less inclined to hold on to those states I miss it seems as though pre-offensive policy work we had to get into dragons and we need to sign a dollar value and if we can't then it's a little harder to say we're going to value that resource even if we can't put a price tag I think we're doing that to some degree I think Bill just in his testimony says we've done dollars of value for her acre of wetlands and for society you know so you know I think we're hearing the testimony I'm not challenging the quality of this for me anyway I just don't want to always sort of round in the direction of the price tag that we might let it go and any go ahead John, welcome thank you, thank you for that opportunity to testify today for the record my name is John Grossman I'm the policy and water program director for Mon Natural Resources Council I apologize I'm not on top of my game entirely you folks probably aren't either as we're meeting for hours and it's pretty close to lunch but it's also time to be home from court today and so it's the day of the fasting so I am fasting today I didn't have any coffee today so if I'm a little short I hope you'll forgive me but I do on a serious note it's not your fault but I think all over Vermont like the legislative committees and such should just be cognizant of these holidays and I'm here because it's so important this was a really important opportunity I didn't want to miss but I am probably not at the tippy top of my game so with that I'll focus on sort of the nuts and bolts issue as I really appreciated Phil's testimony we try to organize our testimony to try to hit different aspects of this so I'm going to talk about a little bit about the no-net loss of wetlands policy and a little bit more depth you heard a little bit that from Phil I'm mostly going to talk about a brief history of wetland regulation in Vermont to give you more context and I won't repeat what you heard from others but I'll discuss some other points I'll comment on the changes to the wetland laws and rules that have been proposed by ANR and the Agency of Agriculture, Food and Markets and I will close but I do want to address at the last meeting there was a discussion about the language that was added to H525 and the conference committee and different interpretations of that language and I want to give you my views on that language and I don't know where that stands right now I don't want to go on record with our view on that language so as context so my experience in wetlands in Vermont I think it's helpful to understand where I'm coming from on this I've been working on wetlands issues in Vermont since 1995 versus an ANR attorney where I provided advice to ANR about wetland issues and I defended ANR permit decisions on wetlands in front of the Water Resources Board I was the Executive Director of the Water Resources Board for two years before the board was eliminated in the permit reform of 2004 and at that point the board administered the wetland rules adopted the wetland rules processed heard the appeals of decisions of wetland decisions from ANR heard reclassification petition decisions so the point of it is I've seen this from a lot of different angles and I think that makes me have a perspective that hopefully could help you in the work that you're trying to do now in addition to that as part of my work at BNRC on two different occasions I've participated in two separate efforts to look at changing the wetland laws in Vermont one in 2007 that culminated in 2009 in changes to the wetland laws Act 31 of 2009 and those were the jurisdictional changes that Laura alluded to and I'll talk a little bit about those more when I get to sort of the nuts and bolts of this and then the process that you've heard about today that I think began I think it began I don't remember exactly when it began it was right before the Scott administration came into office and in my view it's going on today that has not been completed because the result of that was ideas that have been presented to the legislature and to this committee now for changing the wetland laws so I view that as an incomplete effort but I was involved with that as well so I agree with everything that Phil talked about in terms of ecological importance in wetlands and what others have said I think it's important on the snow net loss of wetlands concept to kind of take us back to our wetland rules went into effect in 1990 what was happening in 1990 what was happening in the late 80s was there was a recognition that we had lost a significant amount of wetlands all over the country including in Vermont and it was actually George W. Bush and his EPA in the late 80s that came up with the no net loss policy and that permeated through the states and that became the federal policy in the late 80s and it became the Vermont policy in 1990 and as Phil noted that's codified in the Vermont wetland rules to this day so we've seen a sea change in how we've looked at wetlands from the pre mid going up to the late 80s where wetlands were viewed as swamps and things to be filled and to be contended with versus the vital natural resources that we know they are today so since that change in policy nationally and in Vermont we have made progress in slowing the destruction of wetlands but by no means are we ahead in terms of wetland protection we still are way behind in terms of the amount of wetland loss we've seen as a country and a state up until now and one of our concerns about the proposals that have been made by A&R in the agency of agriculture is that they will result in less oversight over wetlands and they will result over in more wetland loss you know I just think I don't think there's any doubt about that and I'll go into a little bit more about why in a second but it seems like we don't want to go with the wrong correction and the law of the land in Vermont is still known at lots of wetlands and we just don't see proposals to lessen the review of wetlands and Vermont is consistent with that policy John before you go on how do you know where we are with net loss net gains, neutral do you have backs and figures I know that the proposal from A&R is to regulate less wetlands so you're going to regulate less wetlands because I think this gets to Senator Pearson's question it's true that there are a number of different thresholds that A&R is proposing to replace the function and value threshold for jurisdiction now but those thresholds all result in not reviewing certain wetlands certainly smaller wetlands wetlands under half an acre under a certain size threshold that ever dates into waters there are some other qualifiers in there but they're not as comprehensive of as the jurisdiction we have today so I would challenge anyone to say that the changes proposed is not going to result in less jurisdiction and oversight so therefore we're going to protect less wetlands because we're going to be looking at less wetlands than they are in fact that's the basis of my statement that most are preserved by a stick not by a carrot I think that if you do not have oversight over wetland impacts yes, people will impact wetlands because legally they'll be able to do so and they won't have to get permits I don't believe that people on their own will just avoid and minimize impacts to wetlands without a regulation I think that's why in the 80s we shifted our policies known at loss of wetlands and stronger regulations on the state and federal level I'll talk a little bit about the federal system is not sufficient that's still alluded to at the end of this testimony in my opinion but yes, I don't think that's any better I think it's logic to say that if you're going to have jurisdiction and be under the law people will be allowed to impact wetlands they will impact more wetlands and you can take it to be whatever you want it to be so I want to talk a little bit about the changes that were made in 2009 that the proposal from May was undue basically those changes were the result of a two-year intensive process in which the environmental environmental groups and business groups in particular worked to address this issue of that jurisdiction over wetlands in Vermont was primarily based on wetland maps which you heard a little bit about but it's important to know that it's not just the maps under the law since 1990 any wetland contiguous to a wetland on the map was jurisdictional so there's already been in the law from the beginning that not just wetlands on the maps would trigger jurisdiction that people were on notice that if they impacted a wetland or contiguous to a map wetland those wetlands were jurisdictional and you needed to get a permit but we all recognized in 2007 going up to 2009 that the maps were not sufficient there had always been this process where you could petition to designate a wetland as jurisdictional that wasn't on the map perhaps wasn't contiguous to a wetland on the map but it was a very cumbersome process before the water resources board something that felt very much like a hearing and a contested case proceeding so what we did in 2009 is we said we're going to allow A&R basically in the field to go out and review whether wetlands are significant and are significant for one of the functions and values listed in the wetland rules and then more quickly issue a piece of paper to the landowner saying this wetland is significant and you could landowner could challenge that decision but if the challenge wasn't made that wetland could be designated by A&R as a wetland and we would increase the wetlands that we were protecting in the state of Vermont I think that that's a good process and that's what I mean if we go with A&R's proposal and do that by saying no longer would there be a functions and values review you're going to based on these factors such as size and your proximity to a water body or a pair of water or certain sort of natural communities that are in a wetland and you're going to basically lose that functional analysis that we agreed on in 2009 to basically get out wetlands and their functionality regardless of size and that is our core objection to what the agency is proposing we're open to ways to work to create clarity and more efficiency and I think there are ways to do that but they're not reflected in what the agency has proposed so I just and it's frustrating to me having been part of that process I spent two years working with the business community and I testified about this in Representative Parcher's committee in the session and the farmers were not part of that effort because the focus wasn't on farming the focus really was on development and developers and their issues with the wetland system and that doesn't mean that there are issues with farming and wetlands that should be addressed that this committee should look at but that was just not the overarching view and so the proposal that's been made to this committee that was made during the sessions of both the senate ag committee and the house ag committee really was not about farming, really what I'm talking about now is not about farming it was basically on doing what we did in 2009 to affect all other development in the same part there was a major discussion in regards to agricultural farming right but not that particular issue not this part of it nothing to do with farming what A&R put forward did have provisions in the way of the farms but that's not what these provisions really are able to get at these provisions are able to get at all of the development in the state of Vermont I think we all know that water quality was down to the forefront in the last decade in Vermont and we all know that what we've been doing is ratcheting our water quality programs our agricultural water quality programs and our water quality programs affecting other sectors of Vermont's economy and it just seemed like the wrong time to be going the other way on wetland review and permitting when we know that really we need to have increased protection for water quality and so that's a big concern that we know she has as we look at this with regards to the federal questions about the Army Corps system I'm not going to repeat what was said I second what Phil said about the Army Corps has two staff people in the state their programs you should hear from them but they're primarily based on general permit and nationwide permitting programs permits categories of activities or if an activity is not very large in size you can get covered by a general permit and some of those general permits are non-reported so you don't even have to tell the Army Corps that you're complying but you're just on notice and theoretically there could be enforcement but with two people in the entire state and I still said they're not just responsible for Vermont enforcement from the Army Corps is not a very it's not they still have the resources to do vigorous enforcement this is the exact wrong time to be relying on the federal level I'll add to what's been said about the waters of the U.S. rule to say that what the Trump administration is about to propose is going to throw the whole system completely up in the air and go back to a time where there is massive confusion about what is the water of the United States and they described the Supreme Court decisions on waters with a significant nexus and navigable waters but the Trump administration's proposal would go back towards navigable and fact waters that's what they're prepared to propose right now and based on what we've seen from the Trump administration I believe that they could probably do it and if they do it there's going to be litigation and there's going to be significant litigation for a long period of time and I just don't see why we want to hitch our wagon to that effort in that system it's really I think I don't know what the Army Corp regions are going to do all over the country because this is all going to get thrown into disarray very soon it can happen as soon as next week the Obama rule is repealed and we're waiting for Trump administration to basically propose a new rule so the last thing I want to address is the H525 conference committee language and we spent some time talking about the last meeting so the language in question was added to H525 conference committee and just to refresh everybody's memory the language says the secretary of agriculture shall amend the required agricultural practices to include requirements for activities incurring areas that are excluded from regulation by A&R under 10 VSA 902 because the area is used to grow food or crops in connection with farming activities so basically it's saying that the agency that has to amend the draft to cover wetland regulation that's not being it's not under A&R as a purview so I was in the conference committee when this change was suggested and made I asked I raised concern about the language but it meant along with other people who were in the room and I was I was informed that the language did not change the current regulatory structure did not take jurisdiction away from A&R and give it to act it basically saying that we want to make sure that for those areas that currently A&R does not have regulatory authority over because there are farming exemptions in the wetland rules as you well know we wanted an act to cover those with an amendment to the RAPs so I am concerned what I heard at the last meeting and in the letters that I've seen from Senator Starr and Representative Partridge that somehow this language may expand the farming exemption that exists in Vermont law and so I just want to go on and say that the agency does not agree with that interpretation and I'm happy to lay out our argument and our interpretation as to why we believe that the rules that were adopted by A&R since 1990 have not been challenged that defined farming activities and defined farms that are exempt is the law is the duly adopted law and that the language that I just read which doesn't reference change as any of those things doesn't change the status quo but I just wanted to get that out there on the record because I don't know where that issue is I don't know what this committee is going to do about it I did do a record request I submitted a record request to the agency of natural resources and the agency of agriculture and the records that I saw from the agency of natural resources show that they were concerned about that language when it was proposed that they thought it was confusing that they believed even though it was confusing that it didn't change the status of regulation over what lands in farming in the state of Vermont in response to the letter that I referenced that they do not agree that the wetland status for farms and exemptions has been changed and I found I don't know a draft letter from Secretary Tevitz to Senator Starr of the Earth Land and Partridge that seems to say that he doesn't think that the regulatory status of wetlands on farms has changed but I don't know if it's a final letter it wasn't signed, it was from July but I have a request for the agency of ag so hopefully I'll see more about that but I just want to go on a record saying we do not agree that that language has changed anything certainly this committee has been set up when you have these issues and you're going to discuss that if maybe you propose some changes to the status of that issue I guess I would start by saying that when that language was added it was proposed by the Health Tourist Conference Committee you were sitting in the room and I don't recall one question I spoke to Representative Partridge in the hall along with Senator Perlina I'll ask what happened very quickly and everyone broke and I said what is this language it wasn't too late to deal with it we could have had to go to the floor to have to be voted on I believe that the legislative council wasn't even in the room so it had to be drafted on so it may have been what after the conference committee broke but it wasn't over it wasn't a resolved issue and the records that I found the agency of natural resources show that before the final vote if in fact the language would change the status of farming under the well-known rules and they obviously felt that it didn't so they did not raise an objection and to your I don't want to get into this with you because it's all your opinion and yeah I don't want to be rude to you but if you want to sit and help make the laws and write them and question them maybe maybe you should run for a rep or a senate and go through that process it's fine to be a lobbyist but to sit there and ridicule our work I think it's a little bit of not ridiculing your work I'm raising I'm going on record with a different opinion I'm not making up anything I'm stating my opinion and I since this was a matter of record at the last hearing I think it's important to go on record that there are other opinions about this and I don't know the status of this issue so I didn't want to let it go by I don't recall us doing a lot of that discussion there was a whole presentation about it by Michael Grady and a discussion about what that language meant and your opinion about that so I want to address that and speak to that I would be remiss if I did not do that as far as I'm concerned I stand by the letter that we wrote the agency we knew what we were doing I knew what I was voting for when I supported that I believe it was a unanimous vote conference committee I can't talk for the House but I think you were sitting there so you know it was an unanimous vote I immediately popped up and I had a conversation about it I'm happy to submit the records I'll submit the records I have to the committee you can see that the records will show that A&R was confused A&R did not agree with the interpretation and that's their opinion and I don't know what the agency I didn't get a letter from A&R well I can show you the records that I have with the discussions that I see I just don't want it to go unmentioned and be assumed that everybody's in agreement about what this language says and does well it's fine that you disagree just say that you disagree and so be it I would just like to clarify John that the language was actually drafted by legislative council I know that it was after that he was not there at the meeting it still needed to be drafted my recollection is after the meeting broke up my point was that it was every draft member had a copy that's what legislation council does people ask for the draft stuff and they draft it at our first meeting it hadn't been drafted at the second meeting it was drafted my only point was that it was there was opportunities to address confusion the conference committee obviously needed to be voted on in the house there's a disagreement I just want to go on record I would not be doing my job if I did not come here after hearing the discussion last time to say nothing about this and I'll submit the records that I have so the committee can see what A&R is saying about that language and what they think and like I said I don't know the status of it I don't know what's happening I don't know if the A&R culture that will support one interpretation of the other I don't know but I just want in full disclosure I would be not doing anyone a favor by not addressing this issue since it did get a significant amount of airtime at the last meeting of this committee thank you Dave good morning good afternoon thank you for the opportunity to testify today my name is David Mears I'm the executive director of Audubon, Vermont and I realize that I'm only here to stand between you and probably some food no we're just you're good to go we don't have any more witness to that ok well I'll be quick though in some ways I may be just putting a blunter point on some of the comments that my colleagues Mr. Hopkins, Roman have made already I'll just start by noting that the goal that Audubon, Vermont has in the state of Vermont as part of the national Audubon society is to protect birds in the places they need to thrive and it turns out that when you protect birds in the places they need to thrive you end up protecting our communities and our people as well and that's part of the reason I took this position on and I'm excited to be in it is because my sense that in Vermont those things are quite constant that is protecting our landscape and our environment is entirely connected to and synergistic with the needs to protect our communities I go a little deeper and say in particular specific to the areas of farming and forestry that we really, we need an active and healthy farm and forest economy in this state in order to have a healthy working landscapes we need our environment depends upon maintaining and protecting those economic sectors and I've been part of a series of conversations over the last couple of years which I believe most of you know about coalitions groups, farmers researchers, environmental groups, scientists who have been asking the question in particular about what can we do for our farm economy in the state I know it's worth that the General Assembly is very committed to as well we know that farming is in crisis in this state largely because we have such a predominance of dairy farms the global economy the food prices generally create such an incredible impediment and obstacle for our farmers to be successful so I can completely appreciate the desire to find every way we can to help our farmers I will say then with regard to the question that's presented before this committee and that you're addressing which is the degree to which there should be changes in the jurisdiction of the age of natural resources over wetlands with specific regard to forest and farm practices that you should not that is not the way to address the issues that face our farm economy and in many ways you may not fully appreciate the secondary impacts I'm sure you don't fully appreciate the secondary impacts but there is a long history of argument of vitriol of extreme disagreement over the nature of wetlands protections and the relationship of farms to wetlands we have made progress in recent years in building coalitions of farmers to work together to find common ways that recognize that we need farms for a healthy environment and we need a healthy environment for farms and I know it's not intentional but the nature of this particular conversation is one that will cause us to have to go back to our corners and have a significant fight at a time where I don't think it's necessary the idea that we might rely on federal protections and the state is not a sensible idea given what's happening in the national administration with the rollback of the existing programs and regulations even before the changes in the rules that have been proposed under the current administration there's been significant confusion disinvestment in the army core engineers programs and the EPA programs and even before this administration there were significant gaps in the federal programs that the state built in that isn't to say that the state program is perfect or that it couldn't be improved as someone who used to administer the program in my former role at the Department of Environmental Conservation I know that there's unfinished work that I did not get to and that needs needs focus the agency needs additional resources whether it's through fees or it's general revenue there are insufficient number of weapons biologists to do the nature of the work to do a delineation and getting feedback and support and responses to developers or farmers or foresters or anybody who comes into contact and interacts with that program so resources are an important critical piece of that there could be and should be more investment in mapping and delineation of weapons and making that information more easily accessible and compiling all of the various information that's kept by our communities around the state by researchers and making that information available so that if you are proposing to build a project you know where to avoid building there's lots of good reasons to avoid building on weapons not just not just protecting wildlife as it happens though weapons, the bogs, fens, marshes, swamps the forest the flood plains all of those weapons are vital there's such rich ecosystems and the critters that they support and that depend on them then in turn support the broader ecological values of the state our birds depend upon having healthy weapons but put that to the side from them we should also avoid building on the weapons because they're so vital to our communities for flood resilience for clean water whether it's ground water or surface water it turns out there's emerging science showing how rich weapons are in terms of storing carbon and the opportunities to restore and grow and build on our clean water protections and our carbon pools depend upon weapons they turn out to be this vital really critical feature it also becomes a subject of such vitriol because for most of us we grow up in an era where there's the swamp we think of them as unimportant and secondary and in interference in our rights of private property development I fully appreciate that there's a value on important balance to be struck as we develop these programs but reducing the program the jurisdiction changing and tinkering the jurisdiction of A&C Natural Resources doesn't help in finding that balance I think I would certainly welcome this committee or the General Assembly playing an inappropriate oversight role over the agencies and making sure that they improve and update the regulations it's been a decade since the last round new information the agency could invest in doing updates of those regulations they should bring in work groups and have recommendations that are developed with expertise of scientists and policy makers and economists and we can do a better job of including foresters and farmers in that process that would be an appropriate and a necessary action to take another thing that the legislature ought to consider are the ways in which you can use some and direct either existing public funds or think about considering expanding the public funding that goes to restoration of wetlands we're at a moment in time where knowing that loss is an insufficient policy we already had such a major loss of wetlands we have the opportunity this state we have a lot of open land it may be marginal farm land it may be land that's best kept in forest but it's unprotected because it's privately owned there's ways to invest in restoring those wetlands in ways that I think can enhance and help farmers by getting the payments for the value of land that could be providing these wetland services that can help forest landowners in terms of the resources available to them to restore and maintain their forests there's new clean water funding directed towards water quality that I think is appropriately directed to some of these projects there's lots of ways in which this body can engage in oversight of the way those public funds are spent I think we cheat both goals that would help farmers, forest landowners and would help the environment so I'll leave it at that and I'm happy to answer questions I appreciate that this is the testy exchanges that you've had the experience here I think reflect, frankly it's just a tip of a pyramid a much deeper and more angry conversation that is on its way to the extent that you dive into the place statutory changes to reduce and meddle with the jurisdiction as it exists Questions for David? One question I got quite to I'll do one I asked the agency about or brought up the issue of how about registering and licensing the scientists and the consultants that work in the wetlands fields and work with people the general public so that it would speed up the process they're usually the ones that go and talk to people about their property and where to put a building or whatever and would something like that work from your experience DC we do that with our subject systems I think now I think that's a really intriguing idea there's of course risks and details to be managed around that but the idea of having training programs and endorsements and so forth for the scientists and the biologists that are involved in delineating and identifying wetlands makes a lot of sense and then figuring out how to right find the right balance so there's oversight because there's a natural tendency of those kinds of programs for the people who are paying the bills of the consultants to pick and choose those consultants that give them the answers they want to hear so it does require a continued level of oversight and engagement of an agency in order to be effective but that might be a way of enhancing and growing the amount of resources that are available to the donors including farmers because we really do need more people out there with expertise about wetlands that are helping to educate the broader community about the value and oftentimes the values may be unexpected a landowner may not fully appreciate that if they develop or drain a wetland they may be losing important values there may be risks to their own home or their own piece of property as a result of that and oftentimes people don't fully appreciate they certainly don't appreciate the broader public values that we all benefit from Any questions for David? I believe in, it was either S160 or H525 there are pieces of each that made it into other each other we did have an ecosystem services payment I believe it got renamed to Ecosystems Management but the goal was to potentially come up with some funding and I don't recall that we specified so that if barns for instance were in the wrong place if farming was being done in places where it really wasn't a good thing that we could somehow help the farmer by reimbursing he or she to take it down a barn or change their practices maybe take livestock off a farm and help them to change to some other form of farming that would be less harmful to the waters of the state so they're you know we did include language about licensing wetland scientists so there were efforts to approach or address some of these situations I think that's a really rich concept and we're taking a deeper dive into and more activity in action I was part of a group called the Daring Water Collaborative which I know has been presented to you and one of our recommendations was and I know the Gund Institute at the University of Vermont has been developing some information that I hope will be presented to you in the coming session that kind of provides some pathway for how we might begin to pursue that I think it's a really rich and intriguing set of ideas they've either had their first meeting or are going to have a meeting right away in regards to that part of the bill yeah it was cool I have a question about the ecosystem services concept which it has a lot of attractive aspects to it but to be frank a concern I had was if someone has a business of any sort that is damaging the environment do we typically pay them to stop damaging the environment adopt a practice that's less damaging I'm trying to look broadly at how we regulate environmental damage and I'm not sure how ecosystem services and there's a very positive side to it and there's another side that surprises because I just don't see it being applied broadly across commerce of all sorts it's certainly true in kind of the way the environment regulations right through the program to be followed we require people to meet basic minimum standards and haven't paid them to as an alternative to that now that isn't to say there haven't been many programs in which we provide funding to help people achieve their regulatory goals municipalities would be one of the most obvious examples and that makes a lot of sense different than say a Dupont or an industrial facility that makes a profit but helping public communities withstand the cost of regulatory changes makes good sense and isn't something I would oppose but having said that there are certainly risks the extent to which we get in as public entities basically up down in policy that we have to pay for people to protect the environment or to stop polluting we have created a huge black hole of the need for public funding and in essence a sense of kind of environmental blackmail but I don't think that's what I did not understand in the context of farming and the discussion of ecosystem services there's certainly a risk that we would just take funding public funds and give it to farms that are not farming in sustainable ways and are causing pollution but that's not the concept doesn't predetermine that it's not the logical outcome a better outcome would be as Representative Partridge was suggesting to the extent that the farmers willing to make changes in the way that they farm to improve and be more sustainable it may be a multiple payoff we benefit as a public and maybe we should help contribute to that I suspect it will also benefit the farmers as well there are many ways in which better practices help sustain soil reduce erosion and that's at least the hope of these conversations but I think where your skepticism is well heated that we need to be very cautious that we don't do it in a way that just as so often happens with public funds they often flow to activities that we didn't intend unless we're really careful about setting up the program do you know that the programs that are successfully paying for ecosystem services now outside of the monitor store maybe hide other programs within the program to make some challenges defining the current steps defining the performance desire defining that you achieve the performance and that you're sustaining that performance as opposed to payment that achieved a temporary gain that then you might lose in the next there are other programs in other states that have been tried would make success but I think we don't have to look very far the nature NRCS the natural resource conservation service I think their conservation programs are payment for ecosystem services and they have and there's also the U.S. Fish and Wildlife Service has a wellness protection program that landowners can take advantage of that has the same effect and they both work and they don't work there are ways in which those programs have been used to kind of sustain existing farm practices and kind of essentially subsidize bad practices but there are also ways in which and you know as you often heard that you know the community of Middlebury benefited significantly from a lot of those NRCS funds that were used to protect and restore wellness in Addison County and the other creek watershed so there are definitely examples of ways that they can be applied and we can look to those to as we think about a state program to avoid some of the risks Caroline has a follow up kind of a follow up to what I was saying earlier in the original graphs of those bills it was called ecosystem services payment and we had talked about the fact that through the use of soil health principles and cover cropping no till things like that one can not only improve water quality but also sequester carbon and so that was the original concept around the ecosystem services what happened ultimately in the bill was it was changed to agricultural environmental management program and that can pay for farm structure decommissioning so it morphed a little bit so it wasn't Chris it wasn't ultimately called ecosystem services payments just so you know well thank you very much thank you and we have one member that's got to leave shortly but we have one more witness Jeff Nelson and good afternoon and thank you for the opportunity to get to the committee my name is Jeff Nelson I'm with BHB BHB is the largest engineering firm in Vermont I'm based in South Browington and I've overseen a staff authority environment scientists including wetland delineators and people that do permitting of wetland impacts and wetland restoration every day of the week so we're very familiar with both how the federal rules work and how the state rules work and what the interaction is between them I've also personally participated in a number of stakeholder working group processes over the years here in Vermont particularly the process the two-year process that led to the adoption of the 2010 revisions to the Vermont wetland rules which were fairly significant at that time and more recently since November of 2016 ANR has convened a collaborative working group that met 10 times over two years to look at the current Vermont wetland regulatory framework and look at how to improve consistency and clarity but also maintain protection of wetlands and that process I think was making very good progress when we last met as of November of 2018 and one of the things I wanted to leave the committee with is that from our standpoint it would be very worthwhile to continue those discussions I think that within the context of a few more meetings later this year that this group I think can achieve some consensus on some of the outstanding issues and what I'd like to do briefly today is just highlight a few areas that we see some remaining areas that need to be worked on with that group and certainly you know that those meetings are open and to the extent there are folks that feel that they haven't been sufficiently included in the group I'm sure that A&R if they chose to continue the stakeholder process to welcome others to participate so first of all aligning the definition of wetlands between the state and the feds we think is a good idea that's really in my view a technical and scientific assessment of how you've determined whether a wetland is there we think that the language in the alternative wetlands draft that you have makes sense and that just to be clear is not to say that the regulation of impacts to wetlands should be the same at the federal and state level I have no idea what's going to happen at the federal level and I think some of the prior speakers have said similar things but when a wetland delineator goes out into the field and delineates a wetland it should be the same they use the same science to assess whether or not there's a wetland there on the landscape or not so we think that makes a lot of sense secondly the proposal that's been discussed with the stakeholder group essentially to define class 2 wetlands in a different way than they're defined under the 2010 rules and the proposal is to essentially define wetlands based on characteristics and we think that that makes a lot of sense if we can get the characteristics right and what I mean by that is that there are a series of characteristics that are listed in the draft language I think the working group has touched on some of those not touched on others we think there's a need to spend more time at the working group level to talk through that with the idea being that there is not an effort here to reduce in any way the level of protection in fact what ANR has said through the working group process and we agree with is that the level of protection needs to be maintained the same but there needs to be greater clarity and understanding on the part of client owners on the part of public and private entities that have to comply with the rules to understand what a class 2 wetland is and we think that it makes sense to define class 2 wetlands based on characteristics so we think that that's a that's a good way to go but again I believe there's more work to do with the working group then when we think about how things are regulated and what is regulated in the draft bill and through that this came through the working group process really defining the types of activities that would require review and permitting by ANR so dredging draining, filling cutting vegetation and again I think these are I think these are useful ways to look at how wetlands should be protected how impacts to wetlands should be regulated and I think that this is an approach again I think could use a bit more refinement through the work of the group but I think that it does make sense again not of the idea of reducing protections but maintaining or I would argue in some cases even increasing protection because you're looking at the things that are proposed to be done that actually impact the functions and values that the wetlands are performing and then subsequently the review standard is not based on eliminating the consideration of functions and values it's actually based on assessing the impacts of a proposal that would be dredging, draining, filling etc. functions and values so to the extent someone was proposing to fill a wetland that was important for flood water protection that would be something that that function is protected under this language and that there would have to be a determination that that impact was not undue in order for someone to be able to undertake the activity so we think that it gives the same level of protection that exists today with the added benefit that it provides clarity and better opportunity for compliance to make sure that people know what they need to do, what they're allowed to do and what they can do and then finally regarding the topic of certifications we agree that it makes sense to pursue this as you may have heard previously New Hampshire has a program that is very rigorous for the certification of wetland scientists and we have an office in New Hampshire that does a lot of this kind of work as well and the program there is very well established everybody understands what the roles and responsibilities of a certified wetland delineator are much as everybody understands what the septic designer or professional engineer is allowed to do within the scope of their certification so we think that the language as proposed would set up a study of that and we think that makes sense to get the ball rolling on that because I think that could also facilitate protection as well as keeping things moving by not having to do work twice so that is what I wanted to cover and I have to answer any questions we have questions questions so New Hampshire has a system like we tried to correct, New Hampshire certifies wetland delineators and that is the requirement if you are going to apply for any kind of state program and do they have an overview from the agency somehow so that even though they are out there certifying is there a check on these folks I don't know exactly how that works in terms of what the oversight is for the wetland delineators but I am sure that folks in our Bedford New Hampshire office know that and we can follow up with the committee but I am not personally familiar with it we haven't talked about it we get closer to something like that certainly one of our certified wetland delineators from New Hampshire can go over and speak to how that works thank you I am wondering I am sure you both support the language submitted I didn't hear you say you would close any of it but you also think that the state needs to do more work so I actually sent to the committee assistant this morning a markup of this language that framework is good but we think that there are a lot of specifics that still need some tweaking we suggested some edits and some additional revisions and I guess just to be clear this is not just me or it's not just BHP we have been working with a number of regulated entities public and private we had a sub stakeholder group meeting yesterday with representatives from utilities the areas, municipalities transportation other developers these are comments I am not officially presenting them on behalf of VTrans but they reflect input from all those folks and certainly everyone in the room was in favor of continuing the stakeholder process which I think will help you folks do your job one of the things that I was very impressed with when we got to the 2010 changes is that all of the people involved in that process were in agreement that the changes made sense at that time and I feel that they've served us well but I think that we're at a point now where based on the history that's accumulated there's an opportunity to tweak this and go in a somewhat different direction and still achieve the protection that we all are looking to get Anyone else? Here are you talking about the stakeholder group that was working the last couple of years well this is a group that was convened by A&R and we had ten meetings and there was pretty broad representation I'm not sure who from AG was involved or if they were specifically involved but it was really looking broadly at weapon regulation and how to update the statute and the weapon rule but there were probably 30 people or so that showed up at most meetings The reason I was asked was because I wanted to know who was there for our culture I didn't have to look back I can provide a list of individuals I can provide a list of individuals who were involved and Laurie are you folks playing on getting that group going again or Yeah we're in the support of doing I'm not certain when precisely and I want to be I want to be respectful of this process that you're going through but also hearing from the stakeholders yesterday that they wanted to be on those to continue our conversation And I guess our thinking on that Is it 525 that you're obligated to produce something by January 15th Yeah if you folks could meet Anything I mean we've got we have four more meetings and they stretch into December So if you folks could come up with suggestions that would be great Yeah I would suggest that that this stakeholder process could be going on concurrently you know presuming that it's possible to schedule a few meetings with the group that we could I think narrow a lot of the areas that are still in our needed work David did you say you're a part of that stakeholder? I'm trying to talk a little bit I'm trying to stand and build up in the chair to be close I think not true I have not had time Thank you Thank you Chad That concludes our witness list We We need to take just a minute to chat in regards to the next meeting which is supposedly going to be in the Bradford-Barreley Corridor We've been trying to get a place we try to link Corrie but they were booked so we would appreciate some suggestions