 Good afternoon and welcome to the House Environment Energy. This afternoon we're going to continue taking testimony on H687 and we welcome Chris Campani. Greetings. My name is Chris Campani, Executive Director, Wynnum Regional Commission. I believe I was asked to come and comment on tiers two and three. And so I'll be offering comments on behalf of the VAPTA, Vermont Association of Planning and Development Agencies Government Relations Committee. And my comments are very focused. I want to start by saying thanks again for your leadership and taking on this very complex bill and your deliberations on it and bringing in a lot of witnesses. First, regarding Section 2010, VSA 6086A8B, Forest Block and Connecting Habitat, one of the things that jumped out at me was kind of the continuum of of what somebody doing a development needs to do under those provisions to avoid fragmentation of forest blocks or connecting habitat. And first is a development or subdivision will avoid fragmentation through design or location or both. Two, if it's not feasible to avoid fragmentation of design of the development or subdivision fragmentation or it is not feasible to avoid fragmentation of the forest block and the applicant will mitigate in accordance with Section 6904. And in my reading of it, and this is based on prior experience doing permitting and reviewing site plans and doing a review, that could be read somewhat as saying, ultimately, you can develop, you can fragment a forest block or habitat if you've got the money or other resources to do the mitigation. And I'm guessing that the mitigation language may be existing to kind of a safety valve against a taking. And so my suggestion would be, and it may have references in accordance with Section 6094. I know that doesn't exist yet. I think it's 6093 is the ag land mitigation. So I was assuming that ultimately mitigation language would be created for forest blocks and habitat and connecting habitat. But what you might want to consider is laying out exactly when mitigation is allowed. And that could be something like if it would preclude the development of a home or it would preclude all economic use. In other words, set a trigger, not just to say you can mitigate, but when you can mitigate under what circumstances. And I would dig a little deeper because otherwise, and again, I would, you know, ledge counsel and others should ponder this based on case law and other things. But just making sure that you're basically not saying, depending on what your intent is, if your goal really is to avoid forest block fragmentation and habitat fragmentation, establish very clear criteria for when that's allowed at all. Does that make, if that makes... I think you've contemplated that being in the rulemaking piece of this. Okay. But it does. And if you, if you've thoughts on that language that you think either would help rulemaking or that would be ready to go into statute, be welcome that. Can I ask a question? And so was the intent to create, so unless I just somehow missed it, I didn't see the 6094, the 6093 exists, that's the rules for ag land or ag soils mitigation. Was the intent to create a mitigation section related to forest blocks and habitat or did I just miss it somehow? I'm not trying to put you on the spot. I have to go look at 6094. This came from Phoebe's sleep past language. Yeah. That's a good question. Okay. I just want to make sure, I don't want to lead you astray if it existed, then I just somehow was missing that line. What would be where we get there? Questions? Alrighty. Then under resource mapping, and I don't know if my colleagues have already testified to this. When it comes to, when it comes to our regional energy plans, they're very specific. DRAC174 required the establishment of energy planning standards. And it required us to map known constraints. And you have my comments before you. This is straight out of the known constraints and the imprints signals likely they're not absolute unsuitability for development based on statewide or local regulations or designated critical resources to include vernal pools from Vermont Center for Eco Studies, DEC river corridors, FEMA floodways, state significant natural communities, rare threatened and endangered species, natural wilderness areas, class 1 and class 2 wetlands. And then regionally and or locally identified critical resources, and this is in italics, if areas are constrained for the development of renewable energy due to the desire to protect a locally designated critical resource, whether a natural resource or community identified resource, then the land use policies applicable to other forms of development in this area must be similarly restrictive. For this category, policies must prohibit all permanent development and should be listed in a notes column. These areas should be subtracted from raw renewable energy resource potential maps to form secondary resource maps. So what we'd like to do is avoid a situation where for one required plan, the regional energy plans, we're having to do one set of maps. And then for land use maps, for future land use maps, we have other criteria to follow. And it could be use this that you've already defined. And that could be the direction we follow, but we just need, we're just looking for some kind of guidance there so that we're, we're applying the same thing, the same, the same thinking because this, if you recall under this, the standard under Act 174 is not to preclude in a renewable energy development where, where you would allow other types of development, right. And so this could be a fairly elegant fix and something you've already passed into statute and that we're already doing. And that's the basis also. I'll just, just as a reminder, not only for regional energy plans, but that also then stands as the basis for the enhanced town energy, municipal energy plans. And that's really a great example to share with us. And I appreciate it. Can you talk about how that process is going, how it works and then give us an assessment of how you feel like it's worked out in your community? For us, and I have a colleague, Charlie Bay from Jenin County, you can speak to this too if you're wanting to. I thought it worked out pretty well. You know, we worked with the state on the data sets that they had available. Our GIS people worked together and understand like pulling together kind of standard criteria. And if I can ask Charlie, I think I would like even standard colors and other things just so basically the maps looked very similar, what we're talking about, to the future land use maps. So I think that process worked pretty well. The challenge, the, and what we're going to need to do as we update those regional energy plans on just talking about those in isolation right now, we'll need to keep, you know, revisiting what other updates have occurred to those state maps. And I think that's what we would envision doing under the future land use maps too is, in my experience, typically when you're, when everybody's operating off the same set of maps, it's recognized that they're not necessarily static, you know, that you're going to constantly have new information, and they'll be updated and they'll assume that same official standing as they get updated over time. And then all other maps that derive from those data sets get updated. So, but is that what you were asking practically about the maps or the regional energy plan process and in general? I'd like to know a little about the process and how because, you know, we've been talking in this committee about how to map these areas, and it's already happening. So tell us how it's happening. Yeah, I think it works well. Where we struggle a bit is on the regional or locally identified critical resource areas, because we really don't have any funding to do that. For a time, we had some nonprofit funding to do that through the how meadows fund. But it's really to do natural resource planning like that. It's a long running and ongoing process, and you're working with local conservation commissions for that local knowledge and land trust and federal and state agencies. And there also it as a policy notes community identified resource, and those will be not necessarily natural resources, but other cultural, historical, other things. And so, right, that's a constantly evolving process. And so we had worked with Yen Tilka on with agency natural resources on the development of an America, the beautiful proposal that would fund a full time natural resource planner for each RPC for three years. America, the beautiful fund is through the US, US Forest Service. And it's federal funding. But the state felt they just didn't have the capacity to manage another large grant. But we all I believe all the RPCs are recognized that that's area where we just don't have sustained capacity, like we do say with transportation or emergency planning. And this would need to be something that be ongoing, not like a 12 month, 18 month initiative. So, so I would say this works well with the kind of higher level state databases, but then the ability to really drill down. And then I participate in I'm active in the Vermont staying connected initiative discussions and the and the bi national conversations around that also acted like in the Berkshire to the Greens initiative down in Massachusetts. I'm on the Friends of Continental Wildlife Refuge. And the reason why I bring all this up is we there are a lot of conversations out there where we really need to be at the table to talk about what's in the regional plans, what should be in the regional plans, representing those regional interests, representing what our towns are saying. And so there are a lot of areas where that, you know, beyond just the our future land use maps and other things, there's the actual implementation there up, right through both regulatory and non regulatory purposes. And in my experience, this isn't just a Vermont thing, this is a New England thing. 99% of the time, the regional planning commissions are not at the table because we don't have the funding to actually send somebody to them. And I participate as an executive director because, frankly, we got charges or what's called our indirect rate, I just build it into our cost to do in business. But I can't send staff to these things. And not every executive director can't, throughout New England, can't go to these things. And so we tend not to be at the table. And then people wonder, why aren't you there? Because we don't have, we don't have the resources to be there. So, but these are really critical conversations. And when it comes to climate change and adaptation, of course, they're the inherent values of maintaining forest blocks and habitat connectivity, especially for the, you know, as flora and fauna migrate, because of the changing climate. But this is also critical work. And I think we've all been hyper aware of it, of the importance of conservation to help mitigate flood damage, to help mitigate drought, to help mitigate just numerous, yes, it's just that fundamental green infrastructure that we are increasingly relying upon in order to continue to exist as a species. So I can't underscore, can't say enough about how important that work is, but it seems to be kind of often treated as a nice option if you can get around to it, as opposed to poor work that we should be doing. So really long answer your question, but that's the reality of actually doing that work around these these constrained areas. Okay, I guess I'm also just curious the process you go through to map them, and then how you work with your towns to help them build their their town plan requirements. It's really limited, again, because it depends on one hand, are the towns really looking at that. So we'll develop, we'll pull the information from the state. We all have professional GIS folk. We'll develop the base maps, we'll pull that information together, we'll let towns know that we've got that information. And to the extent that it's a priority of theirs, we'll work with them on doing it, we'll work with the planning commissions, conservation commissions. In our region, we partner closely with the resource conservation district, land trusts reach out to us, federal agencies reach out to us. But really, when it gets drills gets down to the town level, they drive ultimately they drive their planning processes, we don't drive those. And it kind of depends on where they're at. So are they primarily focused on looking at their zoning for housing? Are they or are they looking actually at forest blocks and habitat connectors? And what can they do with their zoning around that to the extent that they have zoning? So I think the answer is we could do a lot more and be a lot more proactive if we actually had the staff resources to be out there and be proactive, but it tends to be more working with towns as they reach out to us and need help. So we did add another billing at the end of the bill as introduced that includes staffing or natural resource planner or a resilience planner or whatever you named that could potentially fill that role. And what you just said not pigeonholing that role is increasingly important to you because our natural resources work, it's everything from culverts to habitat connectors and that role in particular, hopefully through whatever performance based contract would be in place would not constrain that because we really need to meet the towns where they are in these conversations. And every town is different and increasingly mercifully, a lot of our towns are realizing they really need to have more conversations among themselves, especially when it comes to river corridor and flooding, that they really need to have more cross town conversations. And yeah, so that'd be great. Representative Sebelia. Thanks Chris for your testimony. I just want to make sure that I'm kind of following along here that we are already mapping a lot of what would be included in tier three critical resource area. I think that's the chair's point. You and I are both from Wyndham County. Do you think that most Wyndham County residents are aware that we have been mapping that property for Act 250 jurisdiction? Probably not because I would say in general most aren't aware of just necessarily what's required for permits or not anyway. So I mean as far as like is the average Wyndham region resident saying hey, they're mapping my land, they're probably where some state maps exist. But I understand these constraints, they're, you know, the primary maps that we use are already the statewide maps. The bigger challenge and like I use Marlboro's example, we worked with them because they really wanted to drill down on like what stream corridors, what habitat connectors should they really be protecting in their zoning. And so when it comes down especially to town regulation where a lot of land use regulation happens, they certainly the public becomes very aware of what the town is proposing. And that's really where that's where that's a little different than just the higher level state mapping. Because as you drill down, and this is one of the things that I would love to be able to do more of is really trying to prioritize where these critical habitat connectors are because it's not necessarily every stream, every culvert crossing. There are ways that you can map to begin to have the conversation about okay this looks like a really key priority area where we could work with property owners in the towns in order to establish easements, permanent conservation easements. And then really work on like replacing that culvert to accommodate aquatic organism and terrestrial organism passage. You don't necessarily have to do that with all of them. You can prioritize where those are. And in our region in particular, especially the eastern part of it, where we don't have a lot of large scale landholdings, that's really important. But the other key to this is oftentimes where those key corridors exist, those are also going to be areas that carry a lot of floodwater. And it's going to be really important to protect those rivers and streams because as we see the behavior is becoming much more unpredictable and violent. And so being able to better and oftentimes as we protect the habitat connectors, we're also making sure that we protect those corridors where our development could be frankly quite dangerous, both for the people who are immediately adjacent to those streams or rivers. And then of course the people downstream as whatever gets washed away goes down. I guess how many of your towns have done this mapping for an energy plan? Oh. And you can just, I mean I'm just curious half or more. Park, I think it's probably about six because it really gets to where they are in their own planning process. And generally speaking, they tend to be most motivated to do the enhanced energy planning when they think there's an energy project coming that they don't like. So the planning commissions, they change membership every year, priorities change every year. The more recent priorities tend to be focused more around where do you develop housing, not as much on energy plans. But as they get through their eight year, remember they're on an eight year cycle as they go through their, and they can certainly update their plans in between. But as they do that, that tends to be when they do their enhanced energy plan element. Generally, a lot of the ones that were really proactive were the ones where they were concerned about possible wind development or where they're concerned about very large scale solar development and they themselves wanted to identify those priority, those preferred locations. And so it tends to be very kind of town demand driven. Actually, I just want to follow up. We're not currently mapping for active 50 jurisdiction. I'm aware of that, Madam Chair. I think that's what we're contemplating. And I've heard kind of reference that the mapping, we're like, we're kind of already doing this. Like it's not really that big of a deal. And, you know, doing it for one reason and then coming in and using those maps for something else feels like there needs to be a kind of broad public discussion about that and engagement and explanation about the problem that we're trying to solve, how we're trying to solve it, what the accountability is as we're trying to solve it, what the engagement level is. And I don't think that work's been done. Would you disagree? Do you think that work's been done? No, because we haven't been asked to do that yet. We do, we do, of course, you look at our future land use map. We already have resource areas. I think it's called working rural lands area. We already map those, because to that extent, we've been doing that since active 50 was created. And when we do that, we're also looking at town maps. And of course, the towns have the opportunity to veto our regional plan and we adopt it if they don't like it. And it really hasn't been an issue, but we already identify resource lands where we basically say development there is not appropriate. Oddly enough, we do have a carved out exemption for quarries just because sometimes you can't have a quarry in any place other than those. And there's a really, there's a whole other area of testimony. There's a really fascinating relationship between climate change and a demand for gravel sand and everything else, because they're having to constantly rebuild the roads or do repairs. And so the quarries are all repeating out quickly. But, but represent this ability. Yeah, we've been, we've been at a higher level mapping this stuff for decades. So we actually need to move on to our next Did you have one question? No, really quickly. So you said that you found that the towns that seem to be doing sort of the energy planning work. It might have been out of motivation to try and because a big project might have been coming or had or had my question is related to that like to the degree that you think the mapping exercise moving forward in this way could be used to, you know, rezone things out rather than hey, this is where it would be great to have housing, whatnot per our regional plan. Generally speaking, the constrained areas already kind of line up with where we've identified like what we call our resource areas is what you would call and more like this critical resource areas we they pretty much line up already. And of course, part of the process under the energy planning mapping is you're also doing overlays of like where where the constrained lands. And because if you recall part of the process of this was to identify how much energy we think we could generate and where. So then you also have to overlay that like where do you have the best solar gain? Where do you have the best wind? Where do you have the best hydro opportunity? So this was so that that's that's constrained map for kind of a base map for all these other things that you have to do. And just because you got need to stop, I'll just call your attention. I make some comments about the river corridor language. Just that I would just suggest you tie that in to other river corridor language already in statute, unless you're the intent is to make it broader than what's already anticipated. And we're generally there are a lot of different ways to get at it. Our position, I think it's fair to say for the RPC is generally speaking, the state really should take that on right now. It's optional for municipalities to regulate river corridors. But this is this is life safety. And really it just it needs to be regulated period. And we would suggest a simple process like you currently issue permits for wetlands or shorelands. But you could certainly put into resource lands and use the district commissions as like a screen or they could issue the permits just just be aware of that language and ultimately what the implications might be. Thank you so much for your testimony. We have to move on. We have a lot of witnesses this afternoon. Sorry about that. We're going to welcome Liz Thompson via zoom. Madam chair and members of the committee, I'm glad to be here. I'm Liz Thompson. Would you like me to go ahead and introduce myself and then I will share my screen. Sure, that'd be great. Yeah, okay. So my name is Elizabeth Thompson. I live in Williston. I have been I'm an independent ecologist. I've lived in Vermont since 1981. Retired from the Vermont Land Trust recently. But my career has involved work with the Nature Conservancy, Vermont Land Trust and other entities. I was involved in the in the work on Vermont conservation design also prior to that Vermont biodiversity project, a previous conservation planning effort and author of Wildlands in New England, which came out last year, co-author of Wetland Woodland, a guide to the natural communities of Vermont. So I have participated a lot in conservation planning and an ecological work over over the years. So what I would like to do and I have to do just a second, I have to get the apologies for the technical. Is that visible? Yes, it is. Thank you. Okay, so I'm going to provide really some general very just really backing up and provide some very general background in my testimony and and sort of where in part why this is so important. I support I'm I'm really really commend your efforts really support the efforts to update Act 250. It's a landmark law that is ready for certainly ready for updating and I know you've been working on that for some time. I'm very excited to see these developments and and new efforts to to update this important law. So this is a really a really important time. So I'm coming to you partly as a representative of Wildlands, Woodlands, Farmlands and communities, which is a regional vision. So I'm going to just talk about how we fit in regionally to to this work. And it's a regional vision for an integrated approach to conservation that includes Wildlands ecological reserve areas, Woodlands managed forest lands, farmlands and communities. One of the things that has come out of this this Wildlands, Woodlands, Farmlands and communities is a good understanding of the history of New England. And this is just an example of a landscape in Massachusetts and Western Massachusetts what it looked like in the 1880s and what it looks like today in Vermont is just like this has had this same history. We can see in this graph of the reduction in forest cover. New England was largely forested region 400 years ago and has became largely deforested and we're now at about 74 percent forest in Vermont. And with those changes came a lot of changes in wildlife habitat. So you can see on the right hand side of this graph you can see that some wildlife species were almost extinct during the height of agricultural clearing and have returned now. So this is one of the key reasons that we need this forest fragmentation work. We need forest fragmentation to be addressed in Act 250. Another really important thing to see is the regional significance, actually the global significance of our forests. Our forests are some of the most intact forests if you include all the appellations, some of the most intact forests in the world. And I believe that nationally and globally we have a responsibility to keep our forests intact. But with this history we are at a critical turning point right now where this is our opportunity. We've got the forest back now is when we need to protect it. It is important for wildlife habitat. It is important as people of others have talked about for blood resilience, clean water, clean air, biological diversity. And this is just to show you that biological diversity increases with forest age. But what we're seeing here of course is what we've been talking about, the fragmentation, what you've heard from many other people about we're looking at forest fragmentation and this is what we really need to deal with. These are just three screenshots that I took last night as I was thinking about it. And these are three places that I know about that I visited in my work around Vermont, places where, and I don't have the measurements as Jamie Fidel had earlier today, but these are roads that are upwards of a mile long going deep into forest and going to single homes. So this one is in Woodstock and this road actually goes not only through forests, but also past many vernal pools right through a couple of vernal pools. So really, really fragmenting the forest. And here's another one in that same area. This one here on the right hand side is in Dorset, which is a place where this sort of thing happens. So I'm going to just, that's just a little bit of background and, you know, I know I don't need to say these things to you. I really don't. You've heard them all before and you are familiar with these, but I just can't emphasize enough the importance of addressing forest fragmentation now and through Act 250. Now how that is done, so you asked me to address tiers two and tier two and tier three and my understanding, which is maybe, there may be errors in my understanding, but what I understand is that the NRB report suggests a road rule of 22,000 feet so that any development that involves 2,000 feet of road collectively would trigger tier two and that would trigger greater scrutiny under Act 250. And that in the proposed bill age 687, you're talking, I use the term buffer and that's not the term you use, but a 500 foot, anything within 500 feet of a road would trigger review. Go ahead. Outside of the farther from the road, not within. Yeah, yeah, yeah, yeah. Okay, thank you. So, so thanks for that clarification. Sorry. So I, I just wonder if it's personally, I wonder if some sort of combination of these things might work. And one of the things that I that concerns me quite a bit is, is that if there is a single road that's not a development, but that's going to a single house, that, that is a problem for me. And I heard from Jamie Fidel the possibility of an 800 foot rule for situations like that. So I think some potentially some combination approach might, might work, but, but I do worry about the single road, the roads to single houses that aren't part of a development. As far as tier three, those places that now my understanding is that, is that these, these are described as critical resource areas in, in the proposed bill. And I believe you are talking about areas over 2000 feet elevation areas with shallow soils, steep slopes, important habitat connectors and prime ag soils. These are, and then the NRB report, as I understand it really just says that these need definition and mapping and this would happen at the RPC level. My thoughts are that I think, I actually think that ANR should lead the process. And you just heard about constraints at the RPC level, but, but I do think that ANR has the data. They manage the data. They've been doing this for 40 plus years, managing data on significant natural resources, critical resource areas. And, and they really, you know, they've done Vermont conservation design. They've, they've thought about this stuff a lot. And I think Vermont conservation design should be used. It's not meant to be used as a regulatory tool as you've heard, but the data contained within it is very useful and should be used as appropriate. Another thing that I just want to point out is that the data on these things are evolving. There's new data all the time and new information is coming in. Now, potential features that could be included would be, as we have now, all lands above 2,500 feet. And in contrast to the suggestion that all lands above 2,000 feet should be included, I would maybe look at a subset of that to look at headwaters areas, areas with very shallow soils as you indicate, and steep slopes. Not necessarily everything above 2,000 feet because I think that's a lot. But, but, but look at really, really critical areas for flood resilience. Also, high priority connectors and certain forest blocks. But again, this is a really, this is a potentially a big one. This is potentially certain forest blocks. What do we mean by that? High priority forest blocks potentially. What do we mean by that? Vermont Conservation Design has identified those. But, but again, if we used the highest priority forest blocks from Vermont Conservation Design, that's a large area. And my understanding is that the expectation is that these would be a relatively small percentage of the area of Vermont. So I think this is something really that needs to be worked out. Riparian areas and river corridors, if they are, I understand this desire not to be redundant with other regulatory mechanisms, but where they are not addressed elsewhere should be considered here. Wetlands also as they are not addressed elsewhere. Understand the wetland rules are under review right now may include riparian and river corridor protections. So I just don't know where that is in terms of other, other legislation and regulations. I think those things are in flux. So that needs to be needs to be addressed. RT&E species, rare threatened endangered species, of course, again, those things move. They're not necessarily always in the same place. Rare and uncommon natural communities and old forests. And here's the final one. I believe that we should be looking at potential old forests, which would be designated by an A and R led process. And some of this work is ongoing, or is is beginning or ongoing now. I also heard yesterday or the day before I heard very clearly that the Agency of Natural Resources has limited capacity. The Agency of Natural Resources is at present deeply engaged in the really wonderful work of implementing Act 59. I've been involved in that. And that is really fabulous work, as John Austin said. So they, you know, they have, you know, they have limited capacity. So I would really support the idea of adding capacity for this work to be, to be done. And just to, I know you heard about Vermont Conservation Design from Eric Sorenson the other day, but there it is. And there is the highest priority natural communities in, in dark blue, the highest priority landscape blocks. Look, that's a lot of Vermont. You're familiar with this. And in the blue surface waters and riparian areas. I'm so just to close, you know, a few of the things that, that we know are important. This is the top amount Mansfield. It plays for a lot of rare species. This is a wetland in southeastern Vermont. And this is an old forest in southeastern Vermont in the Vernon Black Gum swamp. So I do think that, that these are features among the features we need to be looking at. So those are my comments and I'll be happy to answer any questions if I can. Thank you for your testimony. Yeah. Actually, I have a quick question. I think I would love to help have your, have you edify us a little bit on, you said, Oh, well, where threatened and dangerous species might be moving. And part of what was on your list were rare and uncommon natural communities. As I know, you've long and wonderful career in being an ecologist in our state. How much overlap is between those two categories? There is certainly some, there is some. And we often use natural communities as a surrogate or as a course filter for rare species, because many of the rare species also occur in rare and uncommon natural communities. Is that your, is that your question, Chair Sheldon? Yes, yes. Yeah. So there is some overlap. And so there's a level of comfort that if we protect rare and significant natural communities will protect a lot of rare species. There are some rare species, however, that don't occur that occur in, in funny locations, like in power lines. And, and then there are species that move around birds and other, other animals that move around from place to place and are not loyal to one particular natural community. So, so that's why, that's why there is a threatened and endangered species law, for example, that keeps track of those really vulnerable species. Representative Sebelia. Thanks for your testimony. Yesterday, we heard from the Agency of Natural Resources that tier three as outlined in our bill is more closer to half of our land area, I believe, if I'm not mistaken. Would you occur with that assessment as outlined in the bill? Well, I, I, what I heard them say, and what I understand is it kind of depends upon how exactly they get described and designated. But potentially, as I showed you that map, if we, if we, if you included all, for example, all high priority in Vermont Conservation Design, all highest priority connectivity blocks, you know, if that was a measure that would include a lot of Vermont, a high percentage of Vermont, if you included all highest priority interior forest blocks. So we're getting into the weeds a little bit of Vermont Conservation Design, but yes, potentially depending upon how you define it, it could include a lot of Vermont. That's, you know, that my understanding is that that wasn't really the, that wasn't the intention. So I don't, you know, two things, two thoughts on that. One, if they, if they do, if places do rise to that level of significance, they are worthy of that kind of attention. Or another way of looking at it is if you really, if it's really meant to be that those of tier one and tier three are small percentages, the small pieces of the landscape in tier two is, is, is all that, most of Vermont, as I, as I read it, then some thinking needs to be done about how to, how to define that. And that those, some of those features might best be treated in, in tier two. I don't know. Just depends on. Liz, hi. Thanks for coming. I think, you know, as the chair mentioned yesterday, and I incurred, there's not a logical connection in size between the 1A on one of the downtowns and critical metric resources area. There's no, there's no logical correlation between the two. And so I think, you know, at least from my perspective, whether they are the same is irrelevant. What really matters is how do we protect connectivity? And how do we, and so if their highest priority under Vermont conservation design, and we were to be looking how to make it be less, but how would you actually do that if, if we've already said their highest priority, and without them, we're going to lose critical habitat and connectivity? How do you, or how would, how would we reconcile that with somehow making them smaller? The method for us, the way we might get there? Yeah. I mean, there is, thanks for the question, Representative Bungart. There is a, there is a, you know, a subset that you know about, that you've heard about, which is the staying connected linkage areas, which is a smaller, smaller footprint, if you will, or a smaller area of the state that is of areas that have been identified as really pinch points, you know, very, very like already quite threatened pinch points. And, and there's a relatively small number of those areas. So that could be one way of really, of really getting at, you know, what are the most, I mean, they're all, so the problem is they're all critical, right? I mean, all of these connectivity areas are critical. But what are the ones that are, Shutesville Hill Wildlife Corridor? There's 107 in, in, you know, Bennington Shaspere area. There's I-89 Corridor. I mean, there's, there's a few that are, that are known real pinch points, and those might provide a way to really narrow down to the places that are like imminently critical, if not, if not just plain critical. That's, that's helpful. Thank you. Thank you so much for taking the time to testify with us again. Thank you very much for having me. Right. With that shift gears and welcome the natural resources board up and we're going to talk about governance in this next chapter of our journey through Act 250. Not sure, Savannah, do you want to join or who's coming? Amy, I didn't know whether you were going to say up to five minute break or something. Okay. Okay. Hello everyone. Good afternoon and thank you for the opportunity to speak with you again and provide feedback on each 687. For the record, I am Savannah Haskell and I'm the chair of the Natural Resources Board. My comments today, as you said, are going to be focusing on the subject of NRB governance, which is central to in both H687 and our NRB study of recommendations, as well to the necessary updates to the program and general improvements in our organization's operations. Let me begin by saying that we all agree that the NRB will benefit from a professional board. It was a unanimous consensus point in our report and it will be the starting point and backbone in taking the next steps that are outlined in H687 and the NRB report. We agree that a professional board with part-time paid members and a full-time chair should have the qualifications and background that you laid out in H687, environmental science, natural resources law and policy, land use planning, community planning and environmental justice. And we agree that the board should be comprised of professionals from different counties to get a statewide perspective. Who and how the nominating committee is comprised can be straightforward and I'll just step back for a second and say that I was a member of the cannabis control nominating committee and worked with representatives Gannon, Representative Pearson, Ansel and as well as Senator White and Anson and Anson Tibbets. We were up and running and reviewing candidates and meeting regularly and we had we put together a great interviewing process and the longest short of it is we had consensus throughout the whole process on who we were all interested in, who we wanted to interview, what questions we thought should be asked and eventually right down to who we all agreed on who got selected. No friction, no disagreements and unanimous backing of the candidates and that has been my experience and other hiring situations as well. At the NRB in the last year we've hired 12 people, that's half our staff and we work together, we put together interviewing teams of different roles and responsibilities and we all picked out the same candidates and it just happens more than you. It's one of the most refreshing things about human nature because you can agree on things like this. I would also like to say I don't think that the executive branch member, one of the executive branch members needs to be from the Department of Human Resources, they are on call and ready to help whenever there are personnel policy questions or anything that has to do with hiring. I think it would be more helpful to include someone from one of the agencies that more routinely works with Act 250 and the NRB because they'll understand what the right appropriate qualifications would be and of course that's up to the governor since it's the executive branch appointment. Where we do differ on governance is when it comes to appeals. I've already brought that up in previous testimony. I suggested that if that is the goal it should be postponed until the other necessary updates to the program are implemented and the board has had the opportunity to establish itself and its goals for the staff and the commissions and operations. I think hearing appeals at the outset is a little bit like putting the cart in front of the horse and I apologize for putting it that way but the implementation of the framework and properly defining that tiers will take time throughout the testimony that I've been monitoring everybody. I mean we all have a lot of input and ideas and the board needs to put its attention to that first and also to creating the oversight capabilities and guidance to the staff and the commissions. There's a lot of changes ahead of us. If the board's first duties are to transition to hearing appeals it will create a firewall of sorts in the organization that will slow down everything else that you're trying to accomplish. I don't have a crystal ball but I believe with the proper implementation of tiers of jurisdiction and instituting the review procedures for municipalities and future land use mapping appeals won't be the issue that won't be quite the issue. If the public and the applicants understand upfront where and how the process works I believe there will be fewer appeals and as Representative Baumgartz has put it before proactive planning makes the process run better. And then circling back to something I have said before I would request that H687 refrain from over defining and over directing how the tiers will operate. I do think some side boards may be appropriate as in forest frag and habitat corridors but how and what is in tier three is part of the mapping the science and the public engagement process and it is intended to be a counterbalance to tier one not a sprawling regulation of the state that could affect the economic livelihood of our rural communities. I ask that the board and the RPCs and ACCD integrate and create the process first. Let these folks do the public outreach and the bottoms up planning that we we back in our report and that so many people have talked about here and that you've expressed support for and that will ultimately lead to a statewide consistent process that will make for the productive proactive land use planning. So I've been asked a number of times by a lot of different people. So how would this time frame work? And I'd like to try to outline the steps here but I'm going to be vague on dates because I know that Representative Baumgartz has the technical corrections bill in the home act that may or may not extend some of these excuse me exemption dates and it's the sunsets of the exemptions. But the concept is that there should be a straight transition from the housing exemptions and last year's home act and those that may appear in H719 the be home bill that is expected this year. So there are no gaps in land use planning and active 50 changes. Passing updates to the active 50 law and passing housing legislation this year are not an either or in my book. It's a yes and it's just it just is my experience with the cannabis control nominating board in our steering committee consensus work. We can find common ground and we can move forward on multiple complementary and parallel fronts. And I just want to take another second to address the concerns that have been raised a number of times that this will become an exemptions only bill and that the protections will be put off again. That is not the recommendation in the NRB report. Other witnesses have been very clear that this is a package proposal to be implemented together and in unison and H687 is clear on that as we are. It's not one or the other it's both. So I want to just take a second and kind of walk through how we see H687 could be implemented. First the board should be selected and seated. Next it works with the designation and mapping teams as well as other stakeholders to create the time frames and the processes for the meanwhile the board will also be using this time to establish a new level of guidance and oversight of the NRB's operations and working with staff and commissions. Next when the processes for implementation are ready we come back to you to the legislature with plans for rulemaking or statute changes for the tiers concepts and locations and how the certification process would work. After that the new tiers program and it's not exactly the right words but I hope you're following me rolls out the housing exemptions in last year's home act and the ones that might be that might be included in this year's legislation would sunset and the tiers oversight just takes over if you will with the appropriate outreach training and guidance that will be required. Another step a year later after all of this the board would come back to the legislature and provide you with a status update report. How's the new framework working? How did it work the first year? What were the successes and the challenges? What was the data? What tweaks are needed? And then the board would undertake an in-depth review of the act 250 updates, the duties and the responsibilities of the staff and the commissions and the board itself what their role is and adjust as needed including whether or not they think they should hear appeals and come to you to get that authority. While we're discussing appeals I want to share some data review. We average 11 appeals a year over the last six years from a low of six in 2021 and 13 last year. 13 last year included six appeals of JOs, six appeals of permits and an appeal of a permit denial, one permit denial. That's excuse me six appeals of JOs. I'm sorry six appeals of JOs, six appeals of permits and one appeal of a permit denial. We closed 15 cases in 2023 with an average time okay and this gets a little confusing an average time of just over a year from when the applicant filed their application 405 days actually and then from the date of and then another way to look at it is from the date of appeal to the ecourt was just over six months or 196 days. Are there outliers? Yes. Is that okay? Obviously not but this is not unique to Act 250. There are outlier there this happens in municipal appeals and appeals of other permits inside and outside of Vermont but it but there are outliers as we all know. But I believe a professional board will be able to provide the supervisory oversight internally to eliminate the NRV related time delays and the new mapping and the tiers of jurisdiction should decrease the other regulatory delays. Before closing I have a couple more thoughts about governance that were part of your legislative charge and that's on staffing and fees. Just as a just to recall we have 25 permanent staff members and three limited service ARPA funded positions through the end of 2025. One is the executive director which you have called for an H-687 is making a permanent position. We agree, totally agree. We also ask that the two district coordinators be made permanent as well. The amount of work and the changes that are coming and the rewriting of guidance and the increased interaction with applicants that will be needed and with our municipalities and others of these changes is going to be significant as well as we have right now identified over 400 ARPA projects that have come through with a grant process. Not all of them need Act 250 but we go through each one and make sure that we're giving them the pre-application information that they need and talking with appropriate contacts. And there will also be some new responsibilities that will come with associated Tier 1A and B exemptions and how to make sure that they're being implemented responsibly and correctly. So all of this has budgetary consequences and I can delve into that today or I can come back in another time. But the bottom line is that as you all know our funding is derived 80% from fees and 20% from the general fund and that exemptions that are in both H-687 in our report means a decrease in that fund as well as and then there will be additional costs associated with a professional board and adding these if you move forward with that adding the three positions. So we would like to say that if we want Act 250 to sustain our landscapes we need to address sustainable funding to make that happen. Thank you for your testimony. Any questions? Comments? President Smith has a question. I do thank you. You mentioned you have one appeal. Yeah could you touch on that a little bit and tell me what it was about? Yeah I'm just going to end up having one right here. Yeah so we did so we did have for the record maybe. All right so Pete Gale Executive Director of Natural Resources Board. We did have a good question. We did have one appeal of a permit that was and it was a denial of the permit because it was an issue with the rhinos, the irreplaceable natural areas and cultures and cultures and then we also had a it gets a little bit a little bit complicated but there was a development for a canal area that was a denial based on rule 34e meaning that there was a previous permit on the property and it had specific conditions within it and the and the commission found that those conditions shouldn't be changed for the proposed amendment for the operations there. So does that become the end of the appeal project or is there an avenue that somebody can pursue? Right now appeal is going to the environmental court, the environmental division of Superior Court. And then the Supreme Court. And then the Supreme Court which sometimes happens as we know. Representative Sidonia. Is there any place that I could see that where the correlation between the appeals and the district? The only time I could ask that I do have that. So we had I haven't put the the environmental court appeals filed last year by district. There were two and the Rutland County area district one. There were four and district two, Wyndham and Southern Windsor. There were two and the district three which is Northern Windsor and parts of Orange. Well all of Orange except for a couple of towns. District four had two which is Chittenden County. District five Washington County where we are right now had one. District six Franklin and Grand Island had one. District seven the N.E.K. had one. Zero in Bennington County and zero in Addison County. So they're all they're all you know they're all small numbers they add that adds up to 13 but. Have that for other years as well. I don't right now but I can do that. Yeah I'd be interested in the last five years. Okay that you know though they're small numbers they're huge costs with these appeals. Yeah going through that whole process and and I am not at all surprised to learn that the district that I am in has the highest number. So I will be curious to see if that is consistent across that information for you. Yep sorry I don't have that today. All right thanks for your testimony. We're going to take a five minute break. Okay and if we are going to continue our testimony on age 687 and focus on governance and welcome Rob Wilmington be assumed. Good afternoon thank you. My name is Rob Wilmington. I live in North Bennington and I practice municipal land use, energy and environmental law in Vermont for 40 years. I retired last year. I've been involved in dozens of administrative and court proceedings involving Act 250 including many appeals to the Vermont Supreme Court. I represent towns, regional planning commissions, interveners and project proponents. I tried appeals before the old environmental board as well as the environmental division of the Superior Court. My most recent Act 250 case in the Supreme Court resulted in the reversal of a shockingly bad decision by the environmental division relating to the siting of a commercial development at an interstate exit. I litigated dozens of zoning cases before local boards and in court the Supreme Court and I tried appeals before the former border resources board. The appeals process in the environmental division for Act 250 has not worked in the way that many here hoped. It should be replaced and I reached that conclusion for several reasons. First I had extensive experience before both the old environmental board and the environmental division. The board did a much better job in processing appeals than the court. The board's decisions provided more guidance for the parties and frankly I found the process to be more streamlined. I tried big cases and minor cases in both forums and the board did a much better job. That was my experience. Why did the board do a better job? Here are some likely factors. As with the Public Utilities Commission the board has supervisory and regulatory oversight as well as judicial responsibilities and the board had a broader view than the court of emerging problems and recurring issues in the administration of Act 250. In connection with authority criteria like wildlife habitat and aesthetics the board fashioned decisions that proved helpful guidance provided helpful guidance for developers, planners and others in future cases. The legislature recognized this by statutorily requiring the environmental court to give precedential value to the board's decisions. The court's decisions have tended to resolve cases on narrow grounds and not provide incomparable guidance. I saw in many cases in which project opponents had valid even compelling reasons to oppose development projects, particularly with commercial and industrial projects. Sometimes the flaws in a project are so severe that a permit is denied on appeal but much more often project problems can be addressed by imposing permit conditions. The environmental board was not comprised solely of lawyers, there were engineers, former legislators, business people, planners. That blend of skill and experience can be very helpful in fashioning permit conditions that address real problems but let a project go forward. A board with members of various backgrounds is likely to be more competent than an individual lawyer judge in fashioning appropriate permit conditions to mitigate impacts while still allowing projects to proceed. Also, there was more flexibility in getting administrative hearings scheduled because they only occasionally took place in courtrooms. Hearings could be and often were held in a variety of less formal venues and presumably were much easier to schedule. This is not a small matter. I was repeatedly told in court cases that scheduling a hearing would depend on the availability of courtroom and staff in a particular county and we would often wait. I'd like to make two more quick points. First, many people are concerned about delays in resolving housing cases. You could require a board to give scheduling preference to any appeal involving a housing project of more than a specified number of units, say 10. Vermont law requires the Superior Court to give scheduling preference to cases involving claims of open meeting violations or public document requests. You could do something similar with certain housing appeals. You might also consider giving the board jurisdiction to hear appeals of agency permits if in fact those appeals have been unduly delaying resolution of housing projects. I don't know if they have or not, but that would be another function that the board could play. Second, a board could be empowered to designate a single member to act as a hearing officer in minor appeals or to appoint a panel of three members to hear cases. This type of flexibility can speed along cases and tailor the administrative resources to the complexity of the issues. So in conclusion, I strongly recommend that the environmental division be stripped of jurisdiction over active 50 appeals. All stakeholders, including developers, will be better served. It's time to restore a competent administrative body to do this important work. Perhaps the panels are with the aid of hearing officers, as with the Public Utilities Commission. Thank you. Thank you for your testimony. Representative Sebelia has a question. Yes. Thanks for your testimony. Can you give me a specific example of a decision in the last three years, four years where we would have been backed by the appeals process that is envisioned in this bill? Well, I referenced the case I mentioned before in the Superior Court involved a proceeding that was before it was in Woodstock. It was in the intersection before there. So before the District Commission of Tim Taylor, Chair, the District Commission did a really good job trying to address whether that site was appropriate for a big commercial development and found in, I thought, very persuasive fact-finding and legal analysis that it was appropriate place for it. The Board, the Commission did a really good job. The Environmental Court, well, they got reversed unanimously and decisively by the Supreme Court. They just misread the local plan, the regional plan. They applied the wrong criteria. It was a terrible decision. And I think the fact that the three lay panel did such a good job at track what the Supreme Court said was right. And the quick out of wrong is one example. Other members have questions? All right. Thank you again for your testimony. Feel free to stay in the Zoom room if you would like. I will for a while. Thank you very much. All right. Next up, we have David Gray. David. I think he was going to say- See you on Zoom also. Hi, good afternoon. My name is David Gray and I, too, in coming to you from North Bennington, I have started my career in 1990 in St. Johnsbury and was in private practice. I was lucky to be hired by former Environmental Board Chair Elizabeth Courtney in August of 1993. I was able to serve with a number of outstanding Board members, including Ferdinand Bonn-Gartz, father of Representative Bonn-Gartz. I experienced firsthand the rejection by the Vermont Senate of Chair Courtney and members Bonn-Gartz and Terry Eric. It was a very disruptive period of time and it really called into the question of the independence of the Environmental Board. I was lucky to be General Counsel of the Environmental Board when it was chaired by John Ewing. I believe that Chair Ewing, who of course I am grateful for having made me General Counsel of the Act 250 program, he exemplified the qualities that you want in a chair if you're going to switch to the Board model. He was an attorney, which meant that he was able to exercise independent legal judgment over the advice he received from me, fellow legal staff, and significantly the lawyers making arguments to the Board. I want the committee to understand how important that was in establishing the credibility of the Act 250 program following the removal of the three Board members by the State Senate. The perception had been that the Environmental Board was dominated by its staff. And while there was an element of truth to that, ultimately decisions are made by the Board, not the staff. Chair Ewing had amazing business credentials. He was a lawyer, he was a former district commissioner chair, and he was able to exercise the skilled independent legal judgment that gave everyone the confidence that the decision ultimately was being made by the Board and not the staff. In addition, the chair also needs to be someone who understands that their role is to be the program's defender. And what I mean by that is that through the course of my career, there has really been a nonstop criticism of the process. I think literally the only time I can remember people rushing to Act 250 to solve a new problem was when the burst of cell towers came on the scene. And Act 250's jurisdiction was hastily amended to recognize that this was going to be vertical development, not horizontal development. Other than that, there's been much criticism, much of which seems to repeat itself in cycles that I've experienced in my 30 plus year career. The proposal to remove Act 250 jurisdiction and then with it potentially jurisdiction over appeals from the Agency of Natural Resources will bring you back to the state of affairs you had approximately 20 years ago. 20 years ago, approximately 20 years ago, Act 250 appeals went to the Environmental Board and appeals from primarily the Department of Environmental Conservation would go to what was then the former Water Resources Board and zoning appeals went to court. And the valid criticism was that there were too many forums and that your zoning appeal could go to Superior Court, your DDC permit could go to the Water Resources Board, your Act 250 permit could go to the Environmental Board. And the idea was to have a single fair fight. And what I mean by that is the overwhelming interest we have, I think as day to day participants in the land use permitting process of Vermont, is we want the fair, consistent, and non-political application of standards. And to that end, I do not believe that what you have before you is going to strengthen the administration of Act 250. I fear instead that by separating jurisdiction among multiple forums, once again, there's going to be extended periods of delay where developers, neighbors, all participants find themselves engaged in protracted multiple forums where overlapping jurisdiction and subject matter is going to yield inconsistent and sometimes irreconcilable outcomes. Even if you had, on the one hand, zoning going to court and Act 250 and DDC permits going to the new board, you are inviting discrepancy between the two. And unless you're going to modify the Act 250 criteria, inevitably, the same issues are going to be litigated in multiple places with the potential for inconsistent and irreconcilable outcomes. In turning to the idea of governance, I just want to highlight that I've heard this phrase, a citizen-friendly process. And my practice has been both citizen groups, neighbors, developers, municipalities. I don't know, there are many people who can say that their past client roster includes the Nature Conservancy and Warehouser Timber Company, but I can make that claim that has been the range of my client base. And it's always been because my goal is the consistent, fair, non-political application of legal standards to a set of facts. The idea that somehow the environmental court is deficient because it was reversed in a decision, to me, repeats the common practice where frustration with a particular decision maker leads to a reshuffling of the chairs. And I don't mean to be glib about it, but originally the environmental board actually had a provision which allowed for appeals to be removed to superior court. So that provision was repealed many years ago, decades ago. As I said, there was a period of time after the removal of the board members by the Senate, where we wanted to have one fair fight. And key to that was the addition of appeal rights for all participants. That to me has been one of the most fundamental changes to Act 250, and which brought a sense of integrity and fairness to it. In other words, as originally enacted by the legislature, neighbors did not have appeal rights. And that skewed the process on appeal to the environmental board. I trust that if you move to this new board model, you will ensure that all parties have appeal rights. As for the nominating committee process, to me, it appears that you're trying to shift the control, the political control, from the governor's office to the legislature, which if that's what you want to do, then that's what you're going to do. You've created a committee of six representatives which will be dominated by the legislature. I am a failure as a politician. I will never be a politician. I've been miserable at it. So I defer to you and your judgment, but I implore you that ultimately Act 250 environmental laws zoning is hard. It's really hard. If you don't know how your ear is receiving the sound waves being generated by my voice, if you don't understand the technology and the interplay of electricity and sound pressure and calculus, then you're not equipped as a member of an Act 250 review board to make an assessment as to whether a project will have an undue adverse effect on aesthetics with respect to noise. That is just an easy example of many scientific, engineering, environmental science disciplines which regularly come before the land use review panels and boards. If I could make a plea, it would be for stability and investment in training and a recognition that it is difficult to get through Vermont's environmental laws. And if you want to make it easier, then repeal laws lessen the number of standards. Exempt development. I don't believe simply reshuffling the chair and separating out jurisdiction as this bill proposes will achieve the goal of what has been called a citizen friendly process. Thank you very much for the opportunity to express my opinions. Thanks for your testimony. We've heard that one of the goals of going to the court was this idea of consolidated appeals, but then we've also seen data that indicates that they're very rarely consolidated. And I guess I'm curious how many cases have you been involved that are consolidated? And I feel like you might have implied that the system we're proposing are looking at right now could lead to split decisions. But if you have examples of consolidated appeals and when the court takes them up, do they just say, oh yeah, we support the NRB's decision and the ECs? Because they're consolidated, it doesn't mean they're going to re with all the permits that were issued under that case. In fact, legally, the legislature has allowed them not to. It is provided for de novo review. So if your concern is that you don't like the court because it exercises independent legal judgment, then you would remove its de novo review authority and you would require that the court give deference to the decision maker below or only review questions of law, but that the facts as found below, whether it be by the Department of Environmental Conservation, a local development review board, or the Act 250 commission would be binding on the court and it would simply be limited to issues of law. That's the issue of how you get at deference or having the lower decision control. The other comment that you asked or the question you asked me was how many of my cases are, I say consolidated, Judge Walsh and Judge Durkin would correct me. They would say they're coordinated, not consolidated because what the goal has always been is to have a single evidentiary hearing for all permits on appeal and 85% of my cases on appeal to the court involve multiple permits. It could be an Act 250 permit and a stormwater permit. It could be an Act 250 permit and a wastewater permit. It could be an Act 250 permit and a stormwater permit and a wastewater permit and a discharge permit and a wetlands permit and a zoning permit. So it is rare, it is rare that municipalities have not adopted at least zoning. It is unfortunate that more municipalities have not realized that there is an incentive to have both zoning and subdivision in that Act 250 jurisdictional thresholds rise when a municipality has both. How much of your work is land use appeals? 100% exclusive. I only do environmental land use law like the only difference in my qualifications as Attorney Wilmington described his qualifications is that I'm a young kid. I've only been doing it for 34 years, not the 40 plus that he has. Thank you again for your testimony. Thank you very much. I appreciate it. Next we have my Mark Hall. Hi. Seems to be a bunch of us old land use lawyers wandering to your house looking for the committee room. Me being one of them. My name is Mark Hall. I'm with Paul Franken Collins. We're out of Burlington. I am the chair head of the land use environmental program. I've been involved with Act 250 land use since 1991 when I first helped Dick Brooks do fashion his initial chapters for treat us in Act 250. After that I was a federal law clerk and then I went on to Paul Franken Collins where was amended by Peter Collins in some of the larger more contested Act 250 and zoning proceedings that have occurred in the state. Example being I've been Costco's Council since 2007. I was with Husky. I was with Walmart. I'm saying all of us the first time around. I've been with Champlain College is in our master plan. So I've been around the block a few times. I come here because Austin Davis as the chamber said they're having committee hearing. They may have some questions that you may be able to help out. So I'm here not representing anybody. I'm just here to see if you have any questions about my experience and what I think would help. My understanding this is about the NRB and basically how we want to structure some question as to what appellate bodies are the best. I've been here listening and everything I heard from the board chairs I agree with. And same with Mr. Greg. I know David for a long time. He had everything on the head and probably a better way more eloquent way eloquent way than I could say myself. My feeling is that there is a a need for a professional board name of a you want whatever you want to call it call whatever you want. I think that the function of that board should be to work out the infrastructure and the overall regulatory structure of Act 250 and how it fits into or governs everything on top of the land use process in the state of Vermont. What I see in terms of my appeal problems is I see 10 largely 10 maybe 36. It depends how you count the sub parts of permit conditions. Each one of them can be litigated and each one of them as vague as you could imagine. The famous land use professor once said Act 250 was so vague that no one could really seriously think it's constitutional. When you have standards such as produce undue water pollution as a legal standard means that all your decision making regarding projects of any magnitude whether it be a housing project or an industrial project is based on ad hoc process of litigating what these vague criteria means. And I don't think that's any way to run a land use program. So I would envision for the Act 250 people and the chair and his professional staff would be involved heavily in trying to thresh out those criteria and what really Vermont wants through a regulatory process through rulemaking also coordinating with the various agencies regarding what should be required in that context and also can help with its legal staff to support the commissions in a way that's not a conflict. You don't have a lawyer that's representing the board hearing an appeal that's also representing giving advice to what a commission could be. I think the role of the board ideally would be as a witness in Act 250 proceedings before the court. Now with regard to a board versus a court I'm very adamantly in favor of courts. I've been in front of every board and like the gentleman before me I've been in front of pretty much everything that Vermont's ever had to offer relative to land use. I would say across the board that the court makes better decisions. I think their emphasis is on fairness, their emphasis is on judging, which is to make decisions based on the law within the rules. My experience with boards very often is you do get commissioners or people who are coming into the thing with maybe a bit of a lien to them. And my view has been as that lien increases over time and after a point they are perhaps not hearing all the evidence of being presented to them. They're only hearing what they want to hear. And they're often susceptible to hyperbole and evidence that normal people look at engineers otherwise are looking at a various scans, but it's ending up in the findings of the determinations. I'm a firm believer you know judges to become a judge in Vermont a trial judge is very arduous. I mean you have to have years of practice. You got to have support from your peers. You have to go through committee through the committees. When you get to that age and you get to that experience where you're a judge it's a fairly sophisticated animal. You're not going to just pluck somebody that has that experience and ability to make judgment off the street just because they happen to have an engineering degree or they have some degree from some college in planning or whatever. They're not going to have that ability to make decisions. They also make as the one attorney pointed out they make narrow decisions and they should be doing that. You don't want a decision maker based on applications out there making grandstanding type decisions based on simpler applicants back. You want the courts will go out to make a narrow decision. They'll avoid trying to make a decision they don't have to because they have a limited role. They're not there to establish themselves as a form of oligarchy that can dictate land use processes across the board through decision making. So in that regard I people have heard me say this. I call it the Harry Potter and the source of stone phenomenon. If you want the stone to have the power you can't have it. And I think that's a very critical point when you're deciding who's going to be the people making determinations on these contested appeals especially for DeNova. You don't want somebody making these decisions coming with some preconception. And it concerns me because the process is getting set up. It seems to be as David said a political one in terms of who gets on these positions. And I think you're setting up a situation where you're going to have undue influence relative to who's nominated who gets appointed. I think if you go to the judiciary you're going to something that's totally independent. That's my idea. Now the question that you had earlier how many appeals do I get involved with I litigate pretty much 60 percent 70 percent of my stuff is land use appeals. My appeals typically involve every permit they can friggin appeal. So it's going to be a stormwater permit. It's going to be a wetlands permit. It's going to be active 50 permit. It's going to be a zoning permit. Pretty soon it's going to be 1111 permits. If there is air it's going to be an air permit. It's whatever they can appeal they're going to appeal. And if you're going to have peel off some or all that from the environmental court to the board you're going to double the cost for me and my clients. Obviously you have the upfront cost to do the permitting. You got to meet the permitting. That's a whole different thing than spending eight or nine days or 15 days in hearings in which each day of hearing you got soft costs associated with engineers and architects and everybody else in the room where the fee is running it easily could be twenty or fifty thousand dollars a day. And you have to do it twice because in local zoning then in your active 50 and it even gets doubly aggravating to the clients is that a lot of communities have adopted the active 50 criteria within the course of the zoning permit. So you're going to be in court on the same criteria as you are in front of the board relative to what you're trying to prove for your permit if you split that. And I mean I've heard people say that this multiple appeals in front of consolidated appeals I call them consolidated despite the judge is it's more the case for me that that happens than not. And I just the idea of doubling and tripling that cost just makes no practical sense for me. I've yet to hear a reason why some sort of board be preferable to a court in these situations. So I mean if you want to ask me any questions like I think I've sort of scattered brain made most of my points here is I think the system is fine as it is. It's just under financed. I mean the judges don't there's two judges deciding every decision in the state of Vermont relative from a zoning permit to enforcement action to an active 50 appeal to everything else. And and they also they have maybe one law clerk and they each maybe two law clerks and they're making all these decisions if there's slowness in the system it's because of that. But there's also ways the NRB could work to say how do we consolidate the court system because there's a lot of discovery and other things process these are apply and those appeals that don't necessarily have to. I could streamline the environmental court process you know down to a three or four month process as opposed to a year. If you just look at and say what's necessary for the environmental court here. Thank you for that. Thanks for your testimony. What what additional capacity do we need in the courts for it to function more efficiently? Not not you know if you know you could have every single wish but you know what would make a difference. There's two things I think it could happen. First of all is you could have you know a couple more judges and those judges could to extent their capacity is not being used. They are superior court judges so they could hear help with their the docket exists in the various communities that is non-environmental. The other thing you could do is I think you do need to just additional judges and law clerks but I also think it would be helpful if the use of hearing officers, magistrates, things of that nature could do a lot to clear up what I consider the procedural issues as people bounce along toward the court. A lot of the court's time is spent deciding motions, deciding things that necessarily could be decided could be decided by somebody else that maybe isn't even full time. The thing is there's a lot of noise and litigation and this is what I talk about. You could streamline it a little bit. There's discovery issues, there's hearings, there's depositions. Things like that could be curtailed quite a bit but if there was a hearing officer that could set up and deal with those things that keep the court away from deciding the larger issues which are the decisions on the permit I think would be very helpful. An example would be in the federal court system which I was involved with. They have a United States magistrate judge and he oversees a lot of the procedures that take place in the larger cases. Some people say if it's larger than two inches it goes to the magistrate judge and he deals with all those preliminary issues so the trial judge, the district court judge can deal with the more critical trials and things like that. So you basically have a judge that handles paperwork and then you have judges that decide the cases. Now I think the PUC does that very often these hearing officers and then that's very effective. I just want to interrupt you because I'm sure our time is short here. If you were to add one more judge which I think we heard specified to, well do you have any kind of specificity around the support staff that that you would envision needing to be added alongside that? I think in terms of getting decisions out of the door the primary thing is whether they have law clerks because the law clerks will be doing a lot of the first drafts of opinions. They'll be doing a lot of the research and they would be advising the judge and when the judge by the time he gets in the judge it's he's making decisions on stuff relative to this or that but a lot of the time consuming stuff which is drafting is done. Again in this case it's great for a judge because a judge a judge rules determines what ultimately happens and he knows the law. The law clerk is just helping the judge. It's not turned around like David Gregg was talking about at the environmental board was for a number of years. You have a circumstance where the judges have those support they can turn out a lot more. How many clerks does a judge usually have? I think the trial court has one judge one clerk they may be at two at the environmental court per judge I think it's one but I'm not certain on that. I only see one one in the last few times I've been in the courtroom and there were a law clerk judges a law clerk is typically right out of law school usually with very good credentials in terms of grades recommendations who's you know ready to hit the ground running and they do a tremendous amount of work for the federal court all the Supreme Court judges have clerks all the trial court judges have clerks they're a huge resource for I mean I'm a clerk former clerk we all raise our hands I think that could help but some form of of of offlifting if you can't just add five more judges some way of offlifting the the burden on the judge since the deal with stuff is just relatively trivial trivial and could be answered Donna you know quickly by somebody else. So I have one of the reasons we're looking at shifting kind of back to the model is the idea that we hear a lot about inconsistency among the different districts and lack of oversight so we're envisioning that a board that's actually engaged in kind of understanding land use decisions and providing oversight through this process can't we'll also be better positioned to promulgate rules and provide the sort of legal boundaries and guidance to staff. I think that would be a primary role for a professional board to do so but not in a judicial standpoint but rather an administrative standpoint where they're making things consistent within their organization making them flow and then coming to you to ask for what they need or going to the court when they have to say judge we need consistency in policies and this is what we've determined as being the our position relative to what a criteria means or doesn't mean. I think if you put you're going to be in a judicial standpoint they're really hands hands or hands behind their backs because they have to avoid being in a position where they're conflicted. Thank you for that. Have you followed there's a proposal in another committee to have a separate housing board board of appeals? I don't know how to say this but I the boards to me aren't as efficient or as good as the courts and I mean I just think there's enough boards I mean another board and I get confused. Thank you. You could I explain this to somebody from I explained like I do work for Costco and I have to explain this to general counsel from Costco and when I'm at about the fourth or fifth board their heads are spinning and it's you know but I think keeping them consolidated really helps. I could probably talk all afternoon but thank you for your testimony. Christopher Roy is next. Good afternoon everybody thank you for the opportunity to speak on on this and I am well aware that being the last speaker on a Friday afternoon is a tenuous position so there's one more behind. Okay good well then I'll go on as long as I want. The message. So first of all I'll let you know where I'm coming from. I I'm with the law firm Downs Rackland Martin. I've been there for 34 years now and chair the complex land use and development group and that's part of the reason I'm here but frankly the other things that I've done along the way are are more of a reason. I early on in the 90s I served on the Burlington Planning Commission and then the governor in the mid-2000s appointed me to the old environmental board that we've heard about and I served on that board for 3 years. I subsequently was on the Wilson select board for 8 years and was then on the Chittin County Regional Planning Commission which I chaired before I stepped down recently. So I'm really coming at the issue of permitting in Vermont from a lot of different directions and I the the the topic that we're speaking to right now is NRB governance and I would like to focus on two things. The first of all I think is a consistent message that you've gotten which I wholly support going back to Chair Haskell's points. It is essential that the NRB be robust, be well funded, and really have the tools at its disposal to do all that it can and should be doing in which frankly it can't do right now given resources, time and the laws as they currently stand especially given the dialogue in both chambers about changes to Act 250. There's going to be a lot on their plate and I think it is essential that they get all of the resources they need because in many respects until the NRB is able to realize its full potential I don't think we have an accurate picture as to what else truly needs to be repaired in any substantial way. One example being rulemaking. The NRB hasn't engaged in any meaningful rulemaking to speak of over the last decade plus and as as Mark mentioned there's a lot about Act 250 that cries out for rulemaking. There's a lot of vague standards which are open to interpretation which means that creates inevitably uncertainty unpredictability and consistency and the more the NRB had to devote to really creating a standards-based Act 250 process I think it would be more efficient and it would be more effective. Another area which I think they could take a greater role on frankly is jurisdictional opinions could be handled by the NRB instead of the district coordinators. Right now if you have a jurisdictional opinion it's handed out to all of the district coordinators and there is a real question of consistency under those circumstances and ideally the NRB is conferring with those coordinators and providing backup but it may well be in the interest of consistency that jurisdictional opinions are another area where the NRB could have a more rigorous role and then as Mark mentioned as well really being you know once they have a handle on these things then really being an advocate for the rules and policies that they've promulgated as sort of the the guardians of the Act 250 program and as Chair Haskell mentioned it even if one is supportive of having Act 250 appeals moved over to a board at some point I don't know that now would be the time to do it I think that you are it's an invitation for for failure or dissatisfaction the first thing would be really getting a handle on what sort of Act 250 2.0 is going to look like in a year or two and giving the NRB the resources and the tools to really get that into shape and then assess are there ways to improve the appellate process as was also mentioned I think that a lot of that rulemaking more resources alone would create a more timely efficient consistent appeal process even through the courts I was on the environmental board I was very proud of the work we did on the environmental board I think we wrote some fantastic decisions I wrote a couple dissents that were particularly good but and at the end of the day as good as that work was I think Vermonters are better served by having all of those appeals go to courts and the reason for that is in the 70s we didn't have the regulations that we have now frankly we didn't have the engineering standards the environmental standards the consultants the experts to do that sort of work on a number of things be it environmental noise you name it now more and more of that is really a matter of technical expertise and taking that technical expertise and matching it up against the legal standard and less and less of it has to do with sort of the soft discretion and I think the farther we go down that path the better off we are because then both applicants and neighbors will know going into the process what the likely outcome is and and what areas maybe the project is deficient in or is going to be successful at if more deference is desired for people making a non-legal sort of judgment call then you could make whoever appeals an act 250 decision have the burden of proof on the issue that they're appealing so that is if you lost below you got the burden of proof now and that would provide some level of deference to the non-court decision-making that took place on the local level so if an applicant lost on an issue they would have to prove their case on that issue to the court vice versa if the applicant prevailed if an opponent appeals then they would have to meet their burden of proof on appeal so my experience with the environmental court has been that again when given the tools and the resources it's a more predictable timely way of handling matters like the other lawyers you heard from more appeals than not involve some level of consolidation or coordination and the ones that don't are because the client says well tell you what I know that my act 250 appeal down the road is going to be in front of the same judge so let's go forward with the zoning appeal now and we know that there'll be some level of consistency when that act 250 appeal comes up you know second and q as opposed to doing it all at the same time but it's an option that parties have in order to deal with things in an efficient way it's at the at the end of the day and I think the one thing and I frankly I hadn't thought about it before I thought about resources with the environmental division I think having a magistrate instead of I know there's some concern about a third judge it's like oh my god we're going to do a third not a full judge and it might even be a magistrate that shared with another division but to have a magistrate who can deal with some of the preliminary issues regarding discovery and and other sort of procedural things that aren't really the meat and potatoes that the judge should be dealing with would really create a more efficient method likewise more deadlines can be built into the system zoning right now one well-known deadline is you have 40 days after a DRB closes its hearing before they have to issue a decision and if they don't it's deemed approved and so you know it's the old saying that a hangman's noose tends to concentrate one's attention there's nothing like a deadline to make lawyers and their clients hop a little bit quicker ultimately the act 250 is such a tough nut to crack because it does so much and it was brought into existence you know 50 something years ago now because of a desperate need to provide a regulatory context in Vermont for development that had very little controls and what is it's important for all of us to realize I didn't have gray hair when it was enacted in fact I was in kindergarten when it was enacted and the world is different and and it is not a criticism or a failure of act 250 to recognize that modernizing it is needed so that we're not you know using a mimeograph machine when we should be sending things you know over the internet it's just a matter of updating it and at the end of the day I do believe a strong nrb with resources that can do the rulemaking manage the program and do all of those things well with professional members if that makes sense I think that would be fantastic I think that's going to solve 75 of the issues and then you can tweak the other 25 with some procedural and manpower things in the court and I think you'd find almost all of the issues that people raise um go away I've I've tried and your decision making and frankly my testimony shouldn't be premised upon you know how well I've done in front of the court you know how well I did in front of boards and all of that I've won some and lost some in every kind of form there is in Vermont and I've given the other hats that I've worn and I saw Charlie Baker you know walking around the halls here and Charlie and I work very closely with each other these issues are too important to get bogged down in the politics of the day and I know that you folks wouldn't be biting off this you know big big piece to chew unless you had an interest in solving the problem I thank you for trying to do so because it is a Sisyphean task hopefully the boulder doesn't roll down back on top of you and I trust that at the end of the day everybody is going to be able to work together to improve Act 250 in Vermont as a result happy to answer any questions you might have yeah thank you for your testimony the boulder doesn't roll back to you representative Sifilia let me add my support to the boulder not rolling back I have two actually questions one is on your contemplation about jurisdictional opinions possibly going to the board I have seen some pretty egregious violations I think around jurisdictional opinions so on the face of it I you know I like the thought of that but could you maybe provide the counterargument to why that wouldn't be a good idea so why it's better to have jails and I'm going to ask you my second question now which is around timelines I have proposed a six month deadline for completion of applications I don't know if you've had a chance to see that language I've heard about I haven't read it well if you've if you've heard about it and if you have any thoughts about that I appreciate hearing them so jurisdictional opinions are a sort of a funny funny little animal it's always been with district coordinators and actually back in the day a district coordinator could ask him or herself to issue a jurisdictional opinion and so there are stories of former district coordinators if they didn't have much to do on an afternoon driving around and seeing if there was some act 250 jurisdictional question and then sorry hey jones what is their jurisdiction over that well let me look into it jones and then they would issue a jurisdictional opinion and the legislature the supreme court ruled against that and the legislature got rid of that practice but it's always been before them and part of that was because you then used to take an appeal to the environmental board so it was a decision but the coordinator would do it instead of the commission so with the appeal now going so you couldn't have the the old environmental board do it because they were the appeal body and this goes to part of the problem with having the board do appeals and also have to administer the program because there's a certain amount of you become judge jury and executioner all at once and instead you want the board to have unfettered ability to support districts so that they can do the best work they can but that's sort of a vestige of history and I think especially since in in sort of an ideal model where every all jurisdictional opinions are consistent the legal staff is is housed at at at the board there already should be that dialogue is why not just have the board do that um and then the appeal would go to environmental court and and just and that would frankly free up the district coordinators in the district commissions to process the applications in front of them in a more timely fashion and then the body that has legal staff can do the work on the jurisdictional opinion which are frequently fairly complicated matters regarding deadlines there I'm a big supporter of deadlines like I said they they make you tend to things the difficulty will be you you have to also constrain what you can do during those six months because right now I can tell you without lifting without breaking a sweat somebody who's appealing a decision so you get the notice of appeal is filed it's served on other parties 21 days later a statement of questions is filed within the next month an initial pre-hearing conference is scheduled at that point they come up with a schedule for pre-hearing motions and a potential trial usually four or five months down the road then parties can engage in discovery and depend and there are no you know for lawyers who practice in the area there's a different deadline so I'm I'm talking about completeness of the application the going back all termination they all I'm I'm also that so so there is one there are a couple deadlines right now before the district commission thank you for for redirecting me there that that are in place and one of them is from the moment the application is deemed complete you have a certain amount of days to either have a pre-hearing conference or a hearing and what has happened more and more often is you get the district coordinator without input from the district commission issuing multiple letters saying your application isn't complete I need this I need this I need this to the point where it starts to look like if you want to get a hearing you have to persuade the district coordinator that you should get a permit and that's not what is intended an application is supposed to be sort of here's the stuff regarding my my element so you see this is a real project and we've done the work we need to do to satisfy it and we will present all of it and more at the eventual hearing so there needs to be a limit on the number of completion determinations then then there is a deadline to get you to the pre-hearing conference there should be a deadline from the pre-hearing conference to the hearing because then what happens is you'll get a pre-hearing conference recess order which says we need this stuff and then you'll get a second recess order and a third recess order in some cases not every case maybe they're sort of like the bad examples right a limit of one recess order that has to be issued within a particular period of time now ultimately the best way to do it might not be to do it all by statute because that's a level of granular stuff that you guys don't usually get to you may want to say it's got to be done that that process six months and you nrb promulgate the rules that get us there but that's the statutory standard and you folks who run the program know better than us how to get you to the incremental steps to get there again if everybody goes into the process it's kind of like if you were playing a board game I mean we've all had board games where there's a dispute among the family is like what the rules are that's like you know where we're putting money in the middle of monopoly or not and blah blah blah and that's where the disagreements happen if everyone knows the rules I think it's going to move a lot more efficiently we do need to go to our next witness okay do you have a quick question I have a very easy question madam chair if you had the intention of building a multi-million dollar company and and you wanted to start from scratch would you build it in st johnsbury vermont or littleton new Hampshire um well I can speak from a permitting perspective I there's workforce and economic issues that are where beyond me I can tell you that the the permitting contingencies and unknowns would be a lot less on the other side of the river okay thank you for your testimony right committee we have one more witness it's Ron shems he's joining us via zoom good afternoon thank you for inviting me to testify greatly appreciate the opportunity to weigh in on the important issues that the committee is discussing I want to thank chair shelledon representative bond guards and the committee for inviting me testified today I am a former chair of the environment of the natural resources board I'm not here on behalf of any client or constituency I'm here to share my thoughts as a former chair but also as a lawyer with experience in administrative law and also as a lawyer who represents a lot of people going through the permitting process like David break I represent some opponents but the vast bulk of my practice is on behalf of developers applicants the permits again I'm not here on behalf of any of my clients but my experience in representing applicants and developers has certainly shaken my testimony I support H 687 and I can't overstate how important it is to address governance governance is critical to active 50s efficient and common sense implementation and it's also critical to containing costs one of the issues that we haven't really discussed is you know how are all these changes going to be implemented you know the nrb is going to come up with plans and maps and all of that but how is it going to be implemented down the road and you know currently the nrb has absolutely no authority over the program it ostensibly administers you know we can use the jio example that was discussed earlier which is if I ask a district coordinator for a jurisdictional opinion they check a box so they actually write a jurisdictional opinion and if the nrb disagrees with this core issue of how far does active 50 jurisdiction extend if they disagree with their own staff they effectively have to sue their staff or I have to take an appeal of that decision uh to to the environmental court we have to litigate this decision and litigation is not any it's it's an impediment to development it's it's not an inducement it's not a protection um you know let me give you an example um and a couple of my clients are I have one client that is the that is a commercial big commercial development in central Vermont that's a centerpiece of the new town center let's say a housing a priority housing project is going to go into this is going to be developed within this new town center it would be no active 50 jurisdiction based on the home act over this housing development but what about the infrastructure the road the waters who are going in to the going into the housing development how does that get resolved would active 50 jurisdiction extend over the shared portion of the infrastructure but not the portion of the infrastructure solely serving the housing would active 50 with the exemption won't be limited to just the housing itself we just don't know that you know this bill may address may answer that question if it goes through but in the meantime that's not a question we want to have to go to Porto you know that going over a question with that would um you know it's slow everything down you know we we want to prompt common sense answer and you know basically to you know to put it bluntly it would be great to have a boss you know someone with authority over the program someone who can provide an answer and we don't have that right now you know like it or not active 50 decisions are made through a quasi judicial process that's how district commissions operate and if the nrb or the erb is going to have any authority over the active 50 program it too will have to exercise decision-making authority through a quasi judicial process that's just the way the system works because our active 50 has been set up and so you know after the plans are made after the maps are set how is this going to be implemented you know for example to use the example that Mark Pollard used you know gauge standards undo adverse impact on water pollution or undo adverse impact on aesthetics the environmental board came up with the preachy test you know the you know that court may not be able to do that uh the court isn't going to be looking to implement housing policy that's not a judicial function that's an executive branch function okay now developing tests and furtherance of a particular policy or a particular legislative mandate that's something the erb or nrb has to do that's something that a court won't do so you need you need a boss you need somebody who's actually going to implement things and then you can go for it whether it's the environmental board or directly the supreme board that's a decision for you to make that but no qualms about the environment need a decision to be made and decisions to be made with especially with these new changes can't be made by a single district commission or a single district coordinator they need to be made by the by the erb or nrb that's the only way the system's really going to work and you know if you're going to make big changes to act 250 without having someone in charge of implementing these changes you know that that can undermine the changes it could be it could render them ineffective you know it it's a recipe for you know a lot of litigation that could lead to another like you know to pick on mark again or the cost of gas pumps situation where there's just a lot of litigation to resolve stuff that could be set by rules by decisions by actually having an entity that can run the program and so we I just you know before we go to court I would ask the the committee to make sure there's actually somebody in charge somebody with the authority to implement the change I think there's a need to do that now the example I just gave you but there's certainly going to be an even greater need to do that dive down the road once these changes are ready to be implemented you know a couple other notes you know the right now the the commission of the erb I agree it should be professional board I certainly agree it should have all the tools and that it needs to have resources to be able to you know exercise its authority in a robust way but one of the tools that I'm saying is the authority to actually administer the program right now the the energy does not have that authority I very very much agree with trying to insulate the erb from any politics and I would add even further that it should be you know diverse from a political perspective um transportation board for example it's a nine-member board and the statute forming the transportation board says that there can't be more than four members of a a political a single political party um on that board diversity of political parties um as well as as well as qualifications and that could be some of the concerns over over ideology another thought is the de novo standard certainly know what de novo means that's that's been the standard before the environmental in the former environmental for the the the old division but there are also hybrid standards that could be more efficient so that um I'd urge take a quick look at that I also want to address rulemaking um that's been talked a lot about uh this afternoon rulemaking was critical but in order to make a good rule you need experience and you need you need you need the experience gained from gained from hands-on implementation of the program that you administer you can't make the rules in a vacuum and so I think again that compels having the ERB have actual and real authority over program administers I think that fixing governance will lead to better economic growth it's going to limit mitigation and it'll lead to much better implementation of the important changes scenes that are complicated in age six eight seven um finally I wanted you know you guess I'll touch base on consolidated appeals I handle many many appeals uh to the environmental division so um Ryan we're having a little trouble with the sound and now you've cut out it seems completely oh I'm sorry is this any better probably let's try that um in terms of consolidated consolidated appeals I've been practicing for many years I handle many many appeals to the um to the environmental division I've only had one case that was consolidated and it's a great concept but in practice it doesn't really work and it's rare that to have it happen with coordinated or consolidated because the timing of the various permits being issued and the 30 days you need to appeal the permits they they rarely coincide if it's not an innate process so um I talked fast that I uh bumped a lot of concepts but happy to answer any questions sure um I thank you for testimony I guess I'd like to follow up on and have you talk us through a little bit more since you've had multiple um well anyway others have too but so your idea that the um we need I think there's agreement that we need a professional board and the question is the need for that board to hear appeals in order to have the experience to promulgate rules can you help us understand how that looks to you and why that matters if he is set up to make decisions through a quasi-usual process so if the ERB or NRB is to have authority over over active 50 it has to it has to exercise that authority through that same quasi-usual process that that's how the NRB or ERB would get hands-on experience with active 50 and that you know the actual administration of the program was supposed to administer actually doing it that's what informs uh rulemaking that's what gives you the experience to know this is what a rule should it should be shaped this is what a rule could address this is what a rule its limitations no rulemaking is is prospective only it doesn't address things that come up things that come up get addressed through actual implementation of the program by hearing the appeals the example I gave of how far would the exemption that the priority housing exemption to active 50 jurisdiction in a designated or a new town center how to actually implement that that's not a you know rulemaking wouldn't answer that question or it would be very very fact specific we would need the ERB to issue a jail on that um and to have to jump straight into court to get answers to kind of nuts and bolts questions is is a step backwards in my mind um representative bonger excuse me one another sure when you talk that you're closer to the computer because you're still breaking I'm sorry when you break up um I tend to be so spoken so please tell me to speak just to follow up a little bit um one of the advantages at least that I've seen to I thought about for having the uh board hear appeals is the shaping of policy and you've alluded to this um you know in the past we had the decisions that are still key to the process now in quiche south view and some others and I guess um you know have have we had does the court provide anything similar uh in an ability to because the the old the the the board in the past and the way it might be envisioned under the under the hold of the newly under the rebought regime uh might be to as the board here's these issues it begins to shape policy that filters out through the system and then helps really provide guidance both to applicants to everybody uh and I just wanted you to you know maybe comment on that uh hey are we getting the same kind of guidance in a way that it's as potentially helpful as that might be as we used to from the old from the old system with the south things like south view and quiche um and how important is that to the whole whole system you're you're an agency's ability to shape policy and actually implement policy is extremely limited if it doesn't have authority over over the program and be active 50 decisions across the visual and nature the rb would have to exercise authority over the appeal in order to do that it it would be applying facts to the program to the reform is shaping policy that that's absolutely absolutely critical if the if the erb were to not hear appeals you'd be skipping that step as a single district commission or a single coordinator isn't equipped to to implement statewide policy uh to the contrary you know district commissions are meant to to make sure that a local local sensibilities the local flavor are are taken into account but nothing more they're not charged with the statewide authority they're not they're not charged with a policy function and actually administering the program saying this is what the active 50 permit should look like these are what the condition should be that step is critical and that has to be exercised by the entity that's in charge the entity that administers the program then you can go to court whether it's you go from the from the erb to the environmental division is straight to the supreme court you know that's the policy decision for the committee to make for the legislature to make but unless the erb hears those appeals they'll be very little ability for it to you're cutting out 50 percent of its ability to actually administer the program and show the program does that answer your question uh representative boncarte thanks for joining us in for your testimony um and thank you all for taking the time on a friday afternoon to share your experience and perspective on this it's very helpful uh with that committee we will adjourn for the afternoon