 Good morning, everyone. It's Friday, June 26th, 1104. We're meeting briefly to return to our work on H683, an act relating to the protection of migratory birds. We had a good meeting on it before. Some suggested language changes came up. Pledge Council has worked with Commissioner Porter and his team, and we have language now for the Committee to review. Mr. Kowski, here you are, right, on the money. So if you could show us the bill as amendment, the further proposals of amendments, that will be great. And since I didn't say this since we started up, not all our 926 work will be post break for anyone who's tuning in, perhaps to look at issues related to 926, H926. Thank you. OK, so Mr. Kowski. Good morning. Morning. I'm guessing it's screen sharing time. Here we go. OK, so I haven't been here yet with you on H683, but you did talk about it on Monday. So there were some suggestions made on Monday by the Department of Fish and Wildlife, and Jude has posted on your website for today discussion amendments made based on those suggestions. So hang on one second, please. And maybe just to pause, because the proposal really of the amendment was the Department. And Commissioner Porter, if you could just say briefly to remind people what the goal of was making the amendments, please. Currently, thank you. Thank you, Mr. Chair. There are really two goals here, two amendments with two purposes. In the First Amendment, we suggest listing out the species covered by the Federal Migratory Bird Treaty Act for protection. That will allow the continued management of certain species that may be invasive or problematic without being invited to this of this bill and provides protections, obviously, for those species covered by the MBTA. The Second Amendment was to suggest striking the enforcement line at the very end of the bill, which stipulated what section of the enforcement would come under. That leaves us with the ability to do varied enforcement, depending on the significance and severity of the impact, and to do everything from a ticket through the Judicial Bureau in minor cases to more significant enforcement statutes. So those are really our goals in requesting these amendments. Yep, thanks. Thank you. So, Mr. Kowski, can you take, let's do a couple of things here. So there's a strikeout in lines 1112. Is that new or was that already there? That's new. It might make sense if I talked to you about the original language first. Sure. So H683, as it came over from the House, first started with a finding section, but then was two sections of statute. So first was adding the provisions regarding incidental take to the existing statute, 4902. So as was discussed on Monday, the Federal Migratory Bird Treaty Act has a number of provisions that protect birds listed in the Act from being taken, bought, sold or transported. And so Vermont statute currently covers the existing Federal Migratory Bird Act. We have our own state provisions, but recently the federal government decided to stop enforcing incidental take. So our statute didn't ever directly discuss incidental take. So in order to fill the hole that was left by the federal government, subsection B was added to not a 4902. So bird harm or death that results from human activity, where the intent was not to harm or kill the bird, but where bird harm or death was direct and foreseeable result of the activity is prohibited. And nothing in the section shall require the Department to implement a new program. So we're not talking about intentionally taking birds. We're not talking about activity that would normally be covered by the hunting regulations. We're talking about other types of conduct where it is foreseeable that birds will die based on the conduct, but that's not the purpose of the conduct. Okay. And I think the conversation we had before was that could involve anything from having a lagoon next to a well-drilling facility and that lagoon would be toxic and kill birds that landed in it, or it could be that you repainted a bridge during chimney swift nesting period and destroyed nests. So with the latter being much more likely in Vermont than the former, I think those are the two examples we talked about. Right. And so as the commissioner just pointed out, as drafted as it came out from the house, it just says bird harm or death and it doesn't reference migratory bird harm or death. And the reason that this is phrased this way, and I agree referencing the migratory bird act makes sense, is 4902 is a very old statute and it establishes a general prohibition on taking any wild birds. So its provisions are slightly more broad than the migratory bird treaty act. However, in that existing language, the prohibition can be overwritten by additional statutes, rules of the board or commissioner. So it establishes a general prohibition on taking any birds unless there are statutes on rules of the board or the commissioner that allow for it. And generally, you can picture that as the establishment of the hunting regulations allows for taking birds. So by adding the new language regarding incidental take, we didn't specifically reference migratory birds. So there is a slight concern that incidental take could apply to any non migratory birds. And I think the intent was to not establish that provision. So in the new draft that's on your website, I highlighted in yellow this language in green. So harm or death of a migratory bird listed as protected in the migratory bird treaty act with the federal citation as of July 1, 2020, that results from human activity where the intent was not to harm or kill the bird. So incidental take of birds listed on the migratory bird treaty act only. So that's the first part. So I haven't been for a second. Any committee questions about that language? Okay. Oh, and also sorry. So you did ask about the language that is struck on lines 11 and 12. And so that technically is new. In just in looking at this last night, it seems to be slightly extraneous. So that language that is struck says birds from without the state with belonging to the same family as those protected in the sub chapter shall not be bought or sold. So that's old language. And I think it refers to migratory birds. So it's kind of odd that it's here because it starts on line nine with the general prohibition that wild birds shall not be bought or sold at any time. So it's a little bit of an odd phrase. So in discussing with the department yesterday, I think it's extraneous and can be cut. So that's why that's struck there. Okay. And I'm seeing Commissioner Porter nodding. So, okay. Thank you. So, and then the other part of this amendment is striking the enforcement provision that Commissioner Porter mentioned in 4520. I agree that having that reference should be struck. I do want to talk about the rest of that language though. So section three of this bill adds a new enforcement discretion section. And I haven't talked to this committee about this yet. So this language as it came over from the house says for purposes of migratory bird protection in this title, the commissioner shall, the commissioner has authority to exercise enforcement discretion, including refraining from taking any enforcement action for the incidental take of migratory birds. Enforcement, if any, shall focus on activities that have at least local population level impacts on migratory birds. And then we're going to strike the last sentence. So I agree that striking the last sentence makes sense. This is a very unusual section of law that's being added. We do not normally, normally the legislature does not draft new prohibitions and then immediately state that they don't have to be enforced. This language says that the commissioner does not ever have to enforce the incidental take provision. Enforcement if, and then the second part is enforcement, if any, shall focus on activities that have at least local population level impacts on migratory birds. The freeze local population level impacts is, I don't know how to define that. I think that would be a question that the department would have to, there would need to be evidence of a local population level impact and I don't know how one defines that. So I just want to raise some concerns that this language is unusual to me for the two aspects. Either it never has to be enforced or if it's going to be enforced, it needs to be, it needs to have a local population level impact. So okay. Well, so we have David Mears from the Audubon Society who's been working along with all of us on this. So I'm guessing on behalf of the, if there's anyone I would turn to in a certain way to speak on behalf of the birds, I would look to you and commissioner as well, but what's your sense of how, if this is suitable language and adequately protective to achieve the goals that originally, you know, you brought to the legislature that actually resulted in this bill? Yes, I'm comfortable with this language and this is an issue that also came up in the house and was discussed with, let's say, council assistance. And let's say council is correct that in general this authority, frankly, I would frame it differently, not so much that it's unusual, but that the authority, the discretion of the executive branch to enforce the law is inherent in their constitutional authority and so typically isn't stated expressly in legislation. Nonetheless, I think that it was important to the department to have the language in part because of a concern that in the same way that the migratory bird treaty act language was very broad, this language is relatively broad and it was a concern that people might expect enforcement for very small impacts on birds. You know, the individual bird depth was not the goal of this particular piece of legislation. So the intent of this was to make express that that's the expectation on the department in terms of setting expectations of the broader public and of the regulated community. So it was, you know, it was as is often the case in these kinds of processes, it was language that was negotiated, some link between the department and Audubon and other interested parties. So in my sense, it doesn't really change the authority that the department already had, it just makes it an express statement by the legislation. Can I ask a quick follow up on that? So one of the examples that came up in our last conversation was let's not paint bridges during chimney Swiss nesting season. So does that cross that threshold that the bill defines for possible enforcement? Well, of course, that's a decision for the department, but I engaged in some discussions with the biologists at the Department of Fish and Wildlife about the outlook that some of the scientific literature and how the use of the term local population is used by conservation biologists. And my understanding is that it could be, depending on how many, you know, swallows we're nesting on the bridge, it could definitely be considered a local population impact. Senator Campion, and then we'll go to the commissioner. Thanks, David. So I guess I'm wondering, should there be more specificity, more guidelines for the department around this in terms of, I know we couldn't get to, and I'm sure the commissioner will have something to say about this also. It would be hard to put a number on there, but should we, is there a way to give more specificity, more guidance to the department, or is that just, is that just not feasible? It's certainly feasible. I think it runs against some of the practical challenges as you know in environmental statutes of trying to figure out where do you, particularly for biological matters like this, where do you draw the line between what's a significant impact and what's not significant? And ultimately, the use of a scientific phrase popular local population level seems like the closest thing that would be likely to not constrain the department's judgment. And it does of course, rely us, you know, on on a level of trust in the department to behave professionally. And if they didn't, I would expect that we might be back before the legislature to seek more clarity. But as a, as a, on the front end, it seems to us a reasonable way to approach this given our experience with the way the department has worked in this arena in the past, which has been a very pragmatic approach to kind of bridging the gap between people who might be concerned about individual bird deaths versus those who are more focused on the ecological impacts. So I certainly wouldn't oppose in the longer term, you know, taking a closer look at it. But given, given where we are in the process, this is an important step forward. And I, I, I support, you know, going forward with this language as it's written. So I guess my follow up would be for you, Mr. Chair, I do have a follow up question. If this is going to be on the floor today, but if it's not on the floor until we get back, I can hold my question. Well, originally, you know, our last meeting was so cordial and productive. I thought we were looking at some, you know, just a little adjusting of language in order to bring greater greater clarity to a shared sense of intent. And so I did actually think we would reasonably vote the bill out today because we weren't going to go into any new territory. But, you know, as the longer the discussion goes, the closer we get to my sensing that this might not be ready to vote out today. So I guess my follow up question might would be, would maybe ledge council or Mr. Mears or maybe the commissioner just take us through what the steps would look like procedurally if somebody had a complaint, if somebody had a concern that maybe this was, you know, that there was a, you know, a violation. Ellen, is that something you could do? So if all of a sudden back to the chair's question about about Swallows, you know, if somebody raised a concern, goes to the commissioner's office, if they feel as though it's been, again, this is no reflection at all on our commissioner or his office, but just bear with me for a moment. If they ignored it, if they just felt as though it didn't warrant, and there was a disagreement, what happens next? I could see this playing out on the floor. Senator Campion's question, I would add a piece, what happens first? So how do you make that decision about the bridge? And then if there is no enforcement, then and someone says, well, I think you should have, how would that get resolved? So this new section is giving, and I agree with David Mears' assessment that it's stating the inherent authority, but this is giving the commissioner enforcement discretion. So a complaint would be made to the commissioner through the department. And then the commissioner would have discretion to determine if there was a local population level impact on migratory birds. So then if they found that there was no impact on a local population level, they would not need to pursue action. So I'm just trying to get a sense if there's a disagreement between the department and an individual who feels that there indeed has been a local population impact on migratory birds, what happens? So let's go to commissioner Porter and ask Jordan to walk through how he would respond to this. Sure. If I could, Mr. Chair, and I know you're on a tight time frame here, but if I could, I would just step back for a second and say, for the purpose of context, my department is very involved. And I think it's fair to say professionally, accurately, but aggressively involved in regulatory matters and the regulation of development of all kinds around the state. I think that there was quite a bit of concern that when this bill was first brought forward from the regulated community and the development community, that this would virtually close down any ability to, if this applied to single birds, to individual birds, that it would virtually close down various sectors of development and industrial activity. David, who did a very good job of representing our conversations and the evolution of this bill a few minutes ago, and I worked with those folks to reassure them that indeed our intent here is to protect the populations, even local populations of birds and not individual members of species. And I think that this language is a result of that. To get to the meat of your question here, it will be to the professional judgment of a biologist or an ecologist if there's a population level impact to birds that is foreseeable, was foreseeable, and a direct result. And it will be up to law enforcement wardens and our attorney to determine if there is a case that can be made and defended there. And I think that our history as a department I think will make the case better than I can, that when there are those activities we do and will engage either in the regulatory end on the front end or in enforcement at the back end if necessary. I think what you risk in trying to move away from this local population standard is a real and legitimate concern by those who come under our regulation that this could go so far as to prohibit people from allowing their cats to go outside, which Senator Campy and I might think that's a good statute to pass, but I think that that would encounter quite a bit of resistance. And so this language negotiated on the House side among various parties and supported by the House Committee I think is an attempt to to make it clear that what we're talking about is impacts to local populations and the judgment of scientists within my department. I am very much looking forward to the Porter Campion Amendment which I'm sure will be our greatest legacy. The cat supporters will be coming out in droves against the senator. In answer to your question what would happen if somebody disagreed, the fact is this provision gives the commissioner a broad authority to determine whether there should be an enforcement or not, but the fact remains that the legislature acts as a watch guard and as an oversight entity over the executive branch and if this was the case that the legislature could take action as David suggested to amend or change this. The fact of the matter is that I agree I do not think that this authority to exercise enforcement discretion does anything more really than lay out the inherent authority of the executive branch, but including it in this section I think did give some surety and some reassurance to the folks who will be engaging in the activities that might fall under this that we will be using that discretion and that we will be taking these up in the cases of local population level impacts. Practically to get to the chair's question I think in practice what this will mean is that we will give guidance to municipalities, businesses, and others in how to avoid these impacts as we already do and that if they receive that guidance and do these in any case that our ability to do enforcement will be greatly strengthened and the likelihood of our doing enforcement will be greatly strengthened. So I'm not sure if that wraps up all the questions but that's my view of how we got here and why this section is important both to the House Committee and also to us. Thanks. Senator Campion. Yeah no I just want to thank the commissioner for that and David Mears it feels like everybody's been working together on this feels good it would be terrific I think you know hearing additional testimony now that we could move this today again it seems like a lot of work has been put into it and I appreciate everybody's collaboration. Yeah thank you. Thank you we've been dipping in and out of this bill for several weeks and if there are no further questions or concerns chair would welcome a motion to amend the bill. So moved Mr. Chair. Okay so for we've lost our we've lost our shared screen so let me make sure Mr. Kowsky if I cite draft number 1.1 timestamped 626 2020 917 a.m. Is that the most current amendment to H 683? Yes. Okay thank you. So then to clarify senator Campion's motion it would be to amend the bill as cited in that document I just referenced. Is there any further committee discussion? Okay then the clerk will call the roll please. Okay senator McDonald. Yes. Senator parent. Yes. I'm sorry. Yes. Thanks. Senator Rogers. Senator Campion. Yes. Senator Bray. Yes. Thank you. For 401. Okay and now we'd be looking for a motion to vote out favorably H 683 as so amended. So moved. Thank you senator McDonald. Any further discussion on that question? Okay with that I would ask the clerk to call the roll again please. Senator McDonald. Yes. Senator parent. Yes. Senator Rogers. Senator Campion. Yes. Senator Bray. Yes. Okay. Okay. When any member of the committee cat owning or not like to report the bill seeing no takers at the moment I'd be happy to do so. What's that? Senator Campion wants to do it. I'm happy to do it. Okay. Thank you. So you be the reporter if you can send those documents both the underlying bill and the amendment on to the senate secretary. There's a chance we might catch the last wave of legislation given that I think 100 year old migratory bird protection act is something that I'd say Vermonters would wholeheartedly stand behind you know supporting. So final requested Mr. Chakowsky could just send me with those documents. I would appreciate it. Right and given the timing if you would just forward them right on to the senate secretary that would be great because. Yes I will do that that's right we're on the floor at noon. At noon exactly. So I appreciate everyone working on this thank you for the improvements and clarity that we got to in the end and look forward to moving this forward it seems like a very fitting last meeting for the natural resources committee to have prior to our quote unquote summer break whatever that means we'll all for you we'll all learn. So if there's no further business for the committee then I would move that we adjourn.