 Good afternoon everybody this is the Vermont State Senate committee on institutions today is April the 8th, 2021. The conversation is live on YouTube, and I'm going to first start off by introducing myself Joe Benning the chair of institutions I represent the Caledonia County District. We have with us today for committee members, Senator Ingalls from Essex, Orleans, Senator McCormick from Windsor, Senator Mazza from Grand Isle. We are awaiting for one of our members, Senator parent from Franklin County, who I hope will be joining us shortly. We are continuing a conversation that we began yesterday on the proposal to sync the good ship at Iran deck in Lake Champlain. We have had a little bit of conversation about the subject of the public trust doctrine. Our first witness will be talking about that doctrine to educate the committee. And for all of the witnesses sake, there's a couple of ground rules that I try to relate at the beginning of every committee meeting. We are on YouTube. There may be people out there who have never experienced a committee meeting before. They may be totally unfamiliar with the subject area that you are now talking about. So if I hear words that might otherwise seem normal to us committee members because we've heard the terms, or they're totally unfamiliar to us one way or the other probably interrupt and say what does that mean can you explain it for the purposes of our audience. So we have three members who have not been on the committee previously with one exception one of those three was on the committee a long time ago. We also have a brand new legislators so we have people who are learning this system from scratch with that said, as each of you introduces yourself to testify would be most appreciated if you would start off with a very basic biographical description of who you are, into the subject that we are about to talk about. We have as our first witness Michael O'Grady from Ledge Council, who I've asked to come and share with us and hopefully get some questions about the public trust doctrine and how that fits into our responsibilities as an institutions committee. Michael good afternoon welcome. Good afternoon, Senator. As you just stated I'm Michael great from the Office of legislative Council. I'm going to talk to you a little bit about the public trust doctrine and then some concerns I have about the proposal. And kind of a response to some of the statements that I made that were made yesterday in your committee hearing I watched, I just watched the YouTube and I'd like to respond to some of the things over said. That's a great thing for insomnia if you have trouble sleeping at night. I wasn't able to watch the whole thing. I only had to fast forward through some of it. And the public trust doctrine. It's an ancient doctrine it's it's derived from Roman law and then evolved through British law Kings law. But in the United States, it's a it's a common law doctrine provides it's the state as a trustee holds navigable waters and submerged lands beneath them and trust for the benefit of the people. The public trust doctrine is to preserve for the public access to navigable waters for navigation commerce and fishing, free from obstruction by private parties. And the Vermont Supreme Court has recognized public trust doctrine and the authority of the state to provide some control navigable waters and the landsline underneath them. And one of the doctrine is the state's authority as the sovereign to exercise supervision and control over the navigable waters of the state. And the sovereign in this case is you the general assembly. You are aware that the public trust authority basically best. It's your role to exercise the supervision and care over the public trust doctrine. That said, however, you can delegate that authority to another entity. For example, you delegated to the city of Burlington management of the submerged lands of public trust lands along Lake Champlain for them to manage those lands for public use. You have delegated the issue of encroachment on waters to the Department of Environmental Conservation under title 29. DEC specifically is granted the public trust authority over encroachments for lakes and ponds and title 29 BSA section 401. There's a statement that the lakes and ponds of the state are public trust waters. And there's a statement that DEC is the entity that will implement that public trust, according to the chapter 29 VSA chapter 11. Yesterday, one of your witnesses said that there should be a policy for how the ferry or any other encroachment is going to be implemented. There is a policy. It's 29 BSA chapter 11. It requires the state to determine that the proposed activity is in the public good, and there are criteria for how the state is to determine whether or not it is in the public good. If you have delegated your public trust authority for an encroachment to DEC, and I will now read to you what an encroachment is. I just lost my page. Hold on a second. I'm sorry, it includes, I'll just hold on. It's to place or cause to be placed any material or structure in any lakes and ponds that are public waters or to alter or cause to be altered the lands underlying any waters, or to place or to place or cause to be placed any bridge dock or cable pipeline or similar structure beyond the shoreline as established by the mean water level. What is being proposed here is the placing of a structure in a lake or a pond. You will say well as a boat structure was an artificial reef structure under the Federal Rivers and Harbors Act rules and artificial reef created from a boat is a structure. So you're you've already delegated this authority to an agency. They already received the permit application for it. They've already issued the permit, which raises something called the vested rights doctrine and Vermont. The vested rights doctrine Vermont follows the minority rule. And that means that a person that applies for authorization to do someone the law is best at the time that they apply they have an administratively complete application. Not when the permit or the authorization is issued. So the law that changes between when the application is submitted and when the permit is issued. It doesn't matter their law, their rights vested at the time that they got an application in. I believe the state historic preservation division was the applicant and they applied in 2020. The law that applies to this application is the 2020 law. There's a very good legal argument that you can't change that. Now someone will say the vested rights doctrine and Vermont has only been applied to land use cases. And that's not true. Recently, 2019 it was applied to a stormwater case, which is a water quality case. So now you're back at a water quality issue. So public trust, yes, you as a sovereign have the, the responsibility to manage lakes and ponds for the good of the public, including the lands underneath those lakes and ponds, but you can delegate that authority. You delegated it to DC. You gave them criteria to use to implement and review any encroachment on the water. Sinking of a ship is an encroachment. Restored preservation is already applied. You know, the vested rights doctrine, the law that should apply to that application is the law that existed in 2020. So, and I don't think what's in the house past version of the capital bill really controls, because it's under a section that relates to a CCD, and it says a CCD. The agency it's actually says the agency shall not authorize the reefing of the Adirondack. The agency does not authorize encroachments and are authorizes encroachments. So, there's a very real reading of that language that it doesn't have any application. In addition, one of the witnesses yesterday said oh this is a water quality issue. It's my understanding. The ANR takes the position that if a boat is in Lake Champlain, and it doesn't have any fluids in it. There's no risk of an ongoing discharge, if there's no risk of an ongoing discharge, it doesn't need a discharge permit. And Senator Mazza you may remember that sailboat that was sunk up there around your town that sat there for for months. Okay, it doesn't have any liquids in it. It's not an ongoing discharge. It doesn't need to have a permit. So that's a question I have, if this ferry is stripped of all liquids all fluids. It's not going to have an ongoing discharge. Is it even a water quality issue. Are you back to it's just an encroachment issue. I still think the Rivers and Harbors Act applies because as I said earlier, I do think it's an artificial. It's a structure under the Rivers and Harbors Act. Lake Champlain is a Rivers and Harbors Act federal water. So it may need a permit authorization from the US Corps of Engineers. But it's not an obstruction to navigation. So that's where I kind of come down on this I, I don't, I just was informed of this yesterday I did my best to come up to come up to, to knowledge on this. And I just look at this and I see a bunch of issues. So if you're looking at this, you're talking about the statement in the capital bill. Yes, yes. Okay. Michael, are you the staff attorney for natural resources and energy. Yes, and, and one of the staff attorneys Ellen Tchaikovsky is also one but I do water. And your opinion right now is that this is not a water quality issue. It's an encroachment issue. I think that that's an ours policy for boats that are that are sunk in Lake Champlain if it does not have fluid on it that poses a risk of ongoing discharge then it's not. It's regulated under 10 vs a chapter 47, which is the water quality chapter it's regulated under 29 vs a chapter 11 which is the encroachment chapter. Before we get any further could you just read flag for yourself, I would like a very brief opinion on the subject you've just talked about, because I have a feeling there's going to be some discussion between our committee and the House and I want to make sure I have something in hand when I get there doesn't have to be very long but you've drawn a couple of legal conclusions and I want to make sure I'm not talking. Sure, I, it won't take me long to do that. Okay. Committee. Any other questions, Senator Mazan. I go back to my original statement I've made the last three or four days is how can we legislate something not be done. If we have no jurisdiction and they've gone through the process of getting the permits. And do we have to say we can't do something if you've applied and receive all the permits necessary and I use the example of someone wants to put an apartment house up. They get all the permits and sewer the set everything. And then the legislature with no money involved says to them, no, you can't do it. And that scares me of that precedent that we're setting. I don't know whether it's a boat or whatever is in the lake, if they have met all the criteria for this. And yet, what jurisdiction do we have as a legislator say it's, it's not void is no good. That's, I go back to that same issue I don't know what I'm missing here. I don't think you are missing anything. I think your, your, your example of the, the person seeking those building permits. That's Vermont Supreme Court has said, we're not going to allow the law to change your, your rights best in the law as they existed when you applied. Right, so the law, the law changes, it doesn't affect you. It's when you apply. In addition, you raise the issue of separation of powers. You've delegated this program, the program implemented the program. According to the criteria and statute, I assume, and they've issued a permit. Now you're going to say that that permit can't be issued. That's like telling the commissioner of fish and wildlife that he can't give Bob a hunting license to hunt deer, because the fish and wildlife for public trust resources. Bob can go and get a hunting license. If he's not telling, etc. And, and there, there's you're in the same situation. You're, you're, you're potentially overstepping the legislative role and trying to execute the law instead of establish the law. I agree with Senator Maz. I mean, it's, I mean, I'm not lawyer, but it seems like ex post facto, you know, in the fact that, you know, making the after the fact that we can change the slot going forward after this one but, you know, I've seen projects like a Walmart and other ones take 25 years to get bill. I'd hate to see the legislature get involved. More. So this reminds me, you know, whether you like the rule or not, the rules they had to play by when they started this process. We shouldn't be interfering. So what flag this for me initially was seeing language in the Capitol bill. And hearing from the house that this was a decision based on what I'm hearing clearly were water quality issues. And the potential for water quality issues. And I've been very uncomfortable with a committee on institutions making a call on water quality issues. But that's not in our jurisdiction. I do have an understanding from you Michael that encroachment on the lake, since the lake bed is part of the state lands that this committee would have say in that conversation. But as I also understand it the Army Corps of Engineers have issued a permit. And navigation is not an issue. The Department of Environmental Conservation issued a permit. So at least to them, the environment was not an issue. And I'm really scratching my head. This in scope is probably a very small thing in comparison to the capital budget. It's a very large leap for mankind as far as I can see about committees crossing jurisdictions. And I guess I keep scratching my head, trying to figure out how did that happen. And it may literally be one of the only things we're in disagreement with the house on with the Capitol bill. There could be some hot and heavy conversation on what amounts to nothing in the capital budget because these folks are not asking for any money from us. They may have some maintenance situations down the road but right now there's no request for money. I don't think I'm missing anything. I'm not a lawyer either but I do play one on TV. It seems like we've crossed the line that should not have been crossed and it establishes a precedent. I cannot see the natural resources committee deciding that a transportation issue like where a bridge needs to be fixed suddenly making the claim that a bridge should not be fixed. Because that that clearly is not within their jurisdiction, unless there's some environmental impact. But I guess I'm willing to wait out and hear from the rest of the witnesses. Anybody else have any questions for Michael. Michael that was a good overview appreciate it. Yeah, very succinct and very clear. But I would appreciate your giving me an opinion. And if you would please send a copy of that to Senator Bray and to Alice Emmons. Just let them know that I asked it you forward it to.