SEN. READY: So maybe we’ll switch gears, while Al reprints that, is that okay with everybody? Who’s here from the Agency on the Champion Land? Are you? Okay, do you guys want to join us on the water quality stuff? I’m sorry that we have so many drafts, but it’s nice to have a clean copy. What’s the difference on this one, Al? Bob, you can sit right there in Nancy’s seat if you want because she’s gone today.
MR. BORIGHT: Early in the bill you wanted to replace the laundry list that was in one – hunting, fishing, trapping, et cetera, so that ends up saying “for traditional, recreational uses” which you go into more detail down on two, and it’s traditional and lawful recreational uses, and you had boating – I think you wanted boating in there.

SEN. RIEHLE: We’ve always had perpetual – oh, yes, okay.

SEN. READY: Have we got the boating in – yeah.

MR. BORIGHT: We went through the proofreaders, and there are some technical changes from colon, period.

SEN. READY: We wanted to understand the issue of the water reclassification, and maybe you could just give a little – Bill Bartlett could not be here today. He’ll come on Tuesday if we want him, but could you give a little bit of the background from just a legal point of view of what water reclassification is and what the Agency’s ruling it is.

Andy Raubvogel
General Counsel
Agency of Natural Resources

Sure. My name is Andy Raubvogel. I’m the general counsel at the Agency. Good morning. Reclassification is provided for under Chapter 47, so initially it’s established by statute. It provides the opportunity for the Board to reclassify waters that might be otherwise classified – that are presently classified as Class B to Class A, or waters that are Class A to Class B. So the statute specifically provides that opportunity to reclassify. The standard is that reclassification has to be in the public interest, and the statute enumerates a number of factors that have to be considered to determine whether reclassification is in the public interest. If you want to hear those criteria, I can tell you, but the Board by rule has established a procedure to do reclassifications. It is a rulemaking. It’s not a contested case proceeding. It’s a rulemaking proceeding. It’s what follows the course of administrative rulemaking. As I understand it, the results of the rulemaking would be that if you wanted to go from Class B to Class A, and I should say that those classes – Class A – are waters that have greater protection and have greater value under the water quality standards if that’s not obvious. If the Board were to reclassify, it would simply be a thumbs up or thumbs down. Either they approve the reclassification to A or disapprove it and keep it as B. Although if a petitioner has asked for reclassification of 50 miles, the Board might say: “we’ll reclassify 20 miles.” My understanding, though, is from past precedent that they don’t say we reclassified A, and here are all the things that you can and cannot do.
SEN. READY: They don’t say that?

MR. RAUBVOGEL: They do not say that, no. There are not strings – the standards speak for themselves. That is, if you’ve gone to A, the standards tell you what your management objectives are, what the uses are for those Class A waters, and then the statute gives the Agency Secretary the authority to manage the waters, to manage the classifications, and to enforce the classifications. That is solely within the Secretary’s discretion.

SEN. RIEHLE: Are the approved uses for the different classes in rules or in statute?

MR. RAUBVOGEL: I know that they’re (interrupted)

SEN. RIEHLE: Or a combination of both?

MR. RAUBVOGEL: They are certainly in the rule, and Chris Kilian will probably kick me if I’m wrong to say that they’re not specified in the statute.

MR. KILIAN(?): They’re in both. For Class A they’re more consistent from statute to rule. The Board has done more interpretation with regard to the statutory uses for Class A.

SEN. RIEHLE: Okay, thank you.

MR. RAUBVOGEL: And I can just tell you, the uses for Class A waters are as a source of public water supply, disinfection when necessary, and when compatible, for the enjoyment of water in its natural condition. That’s the use. The management objective value is for Class A is high quality waters that have significant ecological value and water quality of a uniformly excellent character. That’s the standard.

SEN. READY: So what does that do for logging?

MR. RAUBVOGEL: So with regard to logging, firstly, I should say that the standards – the water quality standards – say in the section regarding non-point source pollution, that logging – acceptable logging practices and agricultural practices are presumptively in compliance with the rules.

SEN. READY: For Class A’s.

MR. RAUBVOGEL: For the rules in their entirety, Class A and Class B. That is they presume to be satisfied so long as the logging or agriculture is done in accordance with acceptable practices so long as the activities don’t result in undue adverse effect on any of those values and uses that I just read to you or result in irreversible damage to the waters. And finally, the activities have to be consistent with the strategy for managing non-point source waste within an applicable basin plan. So I think if these waters are reclassified to A, the Nulhegan waters are reclassified, it would be within the Secretary’s discretion – the Secretary would be obligated to manage those waters consistent with the Class A standards that the statute and the Board had laid out. But it would be solely within the Secretary’s discretion as to enforcing those standards. That is, it’s just not left to any other party. It’s not left to the Board. It’s not left to private citizens. The statute clearly says it’s the Secretary who has to enforce this language. That’s reclassification in a nutshell.

SEN. READY: What’s the federal – let’s say you reclassify – does the committee understand the delegation federal clean water act jurisdiction to the state? Do you want to say something about that?

MR. RAUBVOGEL: Sure. The state’s water quality standards are reviewed by the federal Environmental Protection Agency, and they are approved by them. By having approved water quality standards, we are a delegated program. We have the authority to issue permits that were additionally established under the clean water act; for example, direct discharge permits. So we are delegated, the state, for purposes of this discharge program established under the clean water act. Our present water quality standards have been approved, and the revisions that are being discussed are under review by EPA and (inaudible-door slamming) as well.

SEN. READY: I don’t understand in David Deen’s language why – let’s just say – I wish that Bob was here for this, but if the water is reclassified to A, and there was some question as – and logging was allowed – there wouldn’t be any federal question about – I don’t understand what they’re getting at there.

MR. RAUBVOGEL: I’m not sure I do either. I think that the (inaudible-someone coughing) that the Agency could lose a delegated program because of the way it managed these particular waters is not something that’s obvious to me.

SEN. READY: That’s what I thought. I mean, I don’t think it says a word, but maybe you’ll get back to that, because I want to hear what his thinking is and why he feels so strongly about it because the way I read it, it doesn’t do anything.

MR. RAUBVOGEL: My sense was this was some comfort language to ensure that there was no way the Agency was going to be put into a position where it would violate federal law before it would lose the clean water act program. In fact, there had to be some kind of minimum threshold put to this notion of not restricting leases, and that was the standard that someone put in there.

SEN. READY: Well, let’s have general questions about the issue and let’s see if when Bob comes back we can ask him more specifically about what he was trying to do and what he thinks – what the value is he’s trying to protect with the language.

SEN. RIEHLE: So can we ask questions?

SEN. READY: Yes.

SEN. RIEHLE: Now, if you reclassify the waters to A, I understand you can allow logging.

MR. RAUBVOGEL: I believe that’s true.

SEN. RIEHLE: But I’ve been told that there may be the manner in which you’re allowed to log around Class A waters is much different than around B in terms of the riparian (interrupted)

MR. RAUBVOGEL: Right. We only have one set of (interrupted)

SEN. RIEHLE: Is that an issue that maybe they were trying to resolve?

MR. RAUBVOGEL: There’s only one set of rules that the Agency has with regard to logging practices. Those are the acceptable management practices (interrupted)

SEN. RIEHLE: Are they consistent whatever water classification?

MR. RAUBVOGEL: Let me say this, what I think your question gets at is there are some demerit criteria for Class A that are different than Class B. For example, turbidity. Turbidity standard for Class B is not to exceed 10 ntu(?) period. The standard for Class A is not to exceed 10 ntu or background conditions, whichever is lower. So if you had a background condition up in the Nulhegan in a particular segment that was lower than 10 ntu and someone argued that even logging under AMP’s could result in any incremental difference, then we might be running afoul (inaudible-door shutting). I’m not suggesting to you that that could happen. I think we believe that we can have AMP logging that’s consistent with (inaudible).

SEN. READY: So basically what you’re saying is that – is there high turbidity levels up there?

MR. KILIAN: Not as a general condition, no. The water is tannic.

SEN. READY: It is, that’s what I was thinking.

MR. KILIAN: But that relates more to background and color.

SEN. RIEHLE: What does tannic mean?

SEN. READY: It’s brown.

MR. RAUBVOGEL: It’s tea colored.

SEN. RIEHLE: They call it the yellow ball.

MR. RAUBVOGEL: It’s clear. The water is clear, but it’s (inaudible). It looks like tea.

SEN. SPAULDING: If I heard that right, it could cause a change in how you actually do it, or I suppose if you couldn’t meet the background levels, you wouldn’t do it at all.

MR. RAUBVOGEL: I’m going to defer to Connie on how AMP’s really get played out in the field.

Conrad Motyka
Commissioner
Dept. of Forests, Parks and Recreation

The way the AMP’s were developed through rulemaking, it was from the concept of trying to take the best scientific knowledge that we could find, either through research or it was demonstrated through practice over time, and to incorporate those in a series of kind of practices that one should apply on a log job. They were not developed from the standpoint of turbidity units in the water. They were rather preventive measures that should be employed on a logging job in order to not drain the water quality. That was the approach that was taken for a very practical reason. It would be on a statewide basis at least economically impossible to determine the turbidity levels in all the waters of the state because they can change daily. And for us to have that kind of an information bank is an economic – you can’t do it. It’s not possible. So the approach was then to employ practices that would reduce the principal focus of the development of the water quality rules was to prevent sedimentation into the water, and two general principles were employed. One was to design measures that would decrease the velocity of the water moving downhill from – by using interceptor ditches or that sort of thing, and secondly, by using some kind of filter strips of permanent vegetative cover as you got near the water so it served as a natural filter (inaudible-someone coughing). That’s the way (inaudible).

From the point of how it’s done in the field, the way they’re designed is that they carry the force of law through rule. However, it is presumed that you are not causing a violation to the waters of the state if none occurs. So there is some risk issue. An operator may decide that certain of the practices they won’t employ on a particular job, and they calculate the risk that they will not cause a discharge and, therefore, won’t be a violation. There’s a practical measure. If you have a very flat logging job to try and put in water bars on a very flat logging job when the water is not going anywhere, it doesn’t make any sense, so practices are designed from an average of all conditions, different slopes and that sort of thing. And it may be because of a certain soil condition, for example, where the spacing between water bars on the skid row says X number of feet between water bars. You need to take into consideration that if you’re very close to ledge, common sense, the law prevails, you can’t cause a discharge. As an operator from a risk standpoint, you might want to add more than what the standard allows for to decrease your risk of causing a discharge to the waters of the state. So the averages have to be built in. Otherwise, you would have to design a very specific plan for every particular operation, for every single road in the state, and as a practical matter, we could never have enough staffing to every accommodate that. So that’s the approach that’s used.

SEN. READY: Well, let’s ask Bob what his language does and what his goals are and have a discussion.

Rep. Bob Helm
Chair, House Fish, Wildlife and Water Resources Committee

Well, there’s an issue that I don’t think has come up here – maybe I missed it while I was out – and that is the second petition which is for outstanding resource waters. I think that targets more than the quality of the water, the quality of what’s in the water, whether it be frogs or mussels or whatever it is, and I’m confused I guess maybe a little bit as to what degree that could come into play because there is just as big a – there are two petitions, one for outstanding resource waters and one for Class A waters. And I don’t know to what degree the outstanding resource waters will participate in this whole thing. What I’ve heard in our discussions which is not (inaudible) time as that this shouldn’t affect logging, and all we’re saying is, well, it shouldn’t affect logging and snowmobiling and the activities that have taken place several years up there, and what could possibly be wrong with the language.

SEN. READY: But what does the language do? Why don’t you let us know what it does. See, that’s what I have uncertainty about because I think we have the same goal. What I tried to do in the draft that I wrote is direct the Agency that their position will be in any proceeding to go in and protect those uses. So it’s very straightforward. It’s one sentence instead of this is the position of the state; this is what you go in and represent in those proceedings, period. And I’m not sure what the other language does.

REP. HELM: Well, my language - I thought fairly simple – is simply shall not restrict accepted management practices for logging or traditional uses which again I have understood that’s not the intent or it shouldn’t, so again I ask how can that be a problem. Now, we’ve changed this language around here through the process, and what we didn’t want to do is affect our status – I’m probably using the wrong terms – with the federal government under the clean water act so the federal government may - with us being more liberal if you will with our activities – might come in and take over our water quality rules in the state which is (inaudible) but I suppose it’s a possibility. We didn’t want to get into that, so we’ve got some language in the end of that, that will allow for that, and that is simply: the Secretary of Natural Resources deems it necessary to retain state primacy pursuant to the clean water act. So I think we’ve protected ourselves too long to a point where we’re going down what some might call a slippery slope. I think we’re covered with that language. I think it’s good basic language, and again I haven’t heard that this should affect logging, so it shouldn’t.

SEN. READY: So what do you think the language does? Do you guys know each other?
MR. RAUBVOGEL: We’ve never met before.

SEN. READY: Okay, I’m sorry. This is the attorney for the Agency.

REP. HELM: Glad to meet you.

MR. RAUBVOGEL: I think the original language as opposed to your language is somewhat ambiguous in that it’s not clear who it’s directed at. It says the reclassification shall not restrict. I don’t know if that’s a message to the Water Resources Board about how their process is going to play out. Is it a message to the Secretary in how she is supposed to – or he – is supposed to enforce any classification once there is a reclassification. I think there’s some question about who the actor is in terms of the restriction. I don’t read that – as opposed to your language, Madam Chair, that’s directed at the Agency. I think that makes sense if the Legislature wants to direct the Agency in a particular way since we have some discretion under the statute. I will say this, the language as you proposed it is maybe a little broader than we would think is appropriate because it’s unclear what kind of proceedings you’re talking about. It’s also unclear how we’re supposed to ensure those things, logging and recreation, relative to the resource protection function that we also have.

SEN. RIEHLE: Well, we should put that in.

MR. RAUBVOGEL: It’s also unclear – let me just add (interrupted)

SEN. READY: Just a minute, okay? Because what I’m trying to do here is to see if there’s a way that we can work this out, and maybe what I’ll ask Bob is who are you directing yours to? Because what it says is if the Water Resources Board reclassifies waters running on any of the so-called Champion Lands, the reclassification shall not restrict. Who is that order to?

REP. HELM: The enforcement I guess is ordered to the Agency of Natural Resources. However, the lack of restriction would be ordered through the Water Resources Board.

SEN. READY: See, that’s why I’m trying to direct them. But see what I’m trying to do, Bob, is direct them before it gets reclassified to go in and say don’t reclassify in a way that is going to affect these uses. So I’m trying to get them before they go in so that they don’t come out with an outcome (interrupted)

REP. HELM: You’re trying to say don’t petition – basically, okay, petition but don’t reclassify so you might as well not have a petition.

SEN. READY: Well, I can’t tell them not to petition.

REP. HELM: That’s the point.

SEN. READY: But I can tell the Agency what the state’s position should be, or I think I can.

REP. HELM: So you tell them go ahead and petition, and we’re not going to review it. We’re just going to go through the process (interrupted)

SEN. READY: No, what I’m saying is if they petition, then this is what the state’s position will be to protect logging and recreational uses. So they petition and the Water Resources Board sets a contested case hearing. In they come with their classification. In comes this guy here and says – and these guys – and says, well, the state’s position is that we want to make sure that logging is – can they condition a Water Resources Board ruling?

MR. RAUBVOGEL: Well, that was what I was suggesting before. I don’t believe in a reclassification process which is a rulemaking. It’s either a thumbs up or thumbs down, either it’s going to go to A or it’s not. I don’t believe – and Bill Bartlett can speak to this on Tuesday – that they ever place restrictions or conditions as part of that decision. They may change the length of river segment that is reclassified. That’s all they’ve ever done. But I think the statute talks about the criteria for whether to reclassify, but any restrictions on the use of the lands or waters under the new classification are simply whatever existing permitting programs there are and whatever the water quality standards say. There’s not going to be a new layer we don’t believe. Does that make sense?

SEN. CANNS: Can I ask a question?

SEN. READY: Yes, Julius, go ahead.

SEN. CANNS: First of all, I think the petitioners have to tell us why would they want to petition this because something happens, otherwise, they wouldn’t be petitioning for that change from Class B to Class A, and it’s not clear to me what are they trying to achieve by asking for this and from you what restriction happens because if you agree with it, what’s going to happen because we’re all trying to get at it, but the petitioners have to tell us, okay, why do you want to petition this; what’s going on that isn’t going on now with B; you want it to go to A. And the uses of it now are concerned very much because I feel that such classifications if you do agree might change a whole lot of things that they presently do.

MR. RAUBVOGEL: To take a slightly easier situation is, if we were talking about reclassified waters from B to A that had activities that went through Agency regulatory programs, like ski area development or other things that require Agency permits, it might be that because the Class A standards are a higher set of standards, we might hold those permittees to greater restrictions. Logging, however, is not an Agency regulatory program. They have to comply with the AMP’s, and that’s what they do. They don’t have to come back to us for a permit, and recreational uses generally don’t require general permits as well with some exceptions. For example, if a snowmobile club wanted to build a bridge, they might have to get a stream alteration permit. But that’s really an exception to the rule.

So you’re talking about classes of activities that don’t ordinarily go through other Agency regulatory programs. It’s those other regulatory programs that we apply the water quality standards in, and if they were a Class A water, we might be more restrictive. So I think here you’ve got kind of a mixed situation because you’re talking about protecting uses that otherwise don’t

(BREAK TO TURN TAPE OVER).

SEN. CANNS: …..and along came the Agency and said, oh, no, you’ve got to design this, get an engineer for this, it really became complicated, and in the end they finally conceded that these people had done a good job, go out and do it, but they’re occurring, these kind of things, and that’s why I wanted to know what’s going to occur as a result of upgrading it.

MR. RAUBVOGEL: If I can respond, that situation wouldn’t change. Those people had to get a stream alteration permit. This is a program that I know you’re very familiar with. They apply a standard and hearing criteria to ensure that those kinds of projects don’t cause undue pollution in waters. That’s not going to change a whole lot. You would still have to – I don’t understand that any of the language we have been talking about here would affect the base regulatory programs that the Agency has in place now.

SEN. READY: Okay, Bob.

REP. HELM: I’m not opposed to what I’m going to say – don’t get me wrong – however, if I’m not mistaken, anything above 2500 feet is a Class A water.

MR. RAUBVOGEL: Mm hm.

REP. HELM: Automatically, and when Killington and Pico merged they were (inaudible-papers rattling) put a culvert through so skiers could go across the brooks and streams. They were required to not put culverts in but to put bridges in which was much more expensive. I’m not going to say this is going to happen out here. However, they’re both Class A waters so I don’t see why they wouldn’t. I’m not saying I’m opposed to it above 2500 feet on the mountains.

SEN. READY: How much is above 2500 feet?

-----: None.

SEN. READY: None.

REP. HELM: No, but if you change it to Class A waters, it’s the same thing. The point is if we were putting bridges across for skiers as opposed to culverts, what are you going to do with snowmobiles? I have to think that there will eventually – and maybe not this next year – be requirements on the snowmobile clubs, certainly on the other activities.
SEN. READY: To put bridges in? I wouldn’t want to go through a culvert on a snow machine.

REP. HELM: You go over it. (Laughter.)

SEN. RIEHLE: Only Evil Knievel goes through them.

SEN. READY: Chainsaw goes through, too.

SEN. RIEHLE: That’s true, you probably could.

SEN. READY: Let me try this out on you, Bob, okay? I’m working off your draft. I wanted to understand who you were directing your language at. See what you think about this. Water reclassification in a Water Resources Board reclassification case on the so-called Champion Lands which are subject to working forests or public easements – let me start again, I’m sorry. In a Water Resources Board reclassification case on the so-called Champion Lands which are subject to working forests or public access easements, the Agency of Natural Resources shall ensure that accepted management practices for logging or traditional uses are not restricted.

REP. HELM: That says what yours says spread out a little bit more. That’s your language (interrupted)

SEN. READY: No, but what it says is that when they go in, this is what they’ll argue. They’ll argue that accepted practices under the commissioner’s definitions would not be restricted. They would argue that.

REP. HELM: What if they lose the argument?

SEN. READY: Well, if they lose the argument, it’s a judicial case. You know what I’m saying? Yes?

SEN. MacDONALD: Do accepted management practices change from time to time as technologies come and go?

COMM. MOTYKA: We have not changed them since they were adopted through rulemaking, but that is a possibility.

SEN. MacDONALD: Madam Chair?

SEN. READY: Mm hm.

SEN. MacDONALD: Some loggers some place some day could conceivably conduct an accepted management practice that one could construe that would have a detrimental effect on something, so that’s pretty much (inaudible-door slamming)some place and some time, and aren’t we discussing what would take place when that happens?

MR. RAUBVOGEL: If they don’t meet the AMP or if they meet the AMP but it causes a problem. Yes, I think that’s the rub. I agree with you, that is the rub. But no AMP’s adequately protect these waters to continue to meet the Class A.

SEN. MacDONALD: Time after time after time, yes, they will meet the standard, or will meet the standard but we could conceive of some place some time where somebody would challenge that over here it may not meet it.

MR. RAUBVOGEL: I don’t think it’s a leap to say that somebody might make that argument.

SEN. MacDONALD: And that we’re trying to agree on 20 years from now when the trees are growing back up again and somebody makes such a challenge to accepted practices and what they are then, who is going to decide, make a decision.

MR. RAUBVOGEL: And in part what I’m trying to say is that we believe to a large degree it’s within the Secretary’s discretion to enforce such matters as that, and I don’t mean to say that to suggest that we’re going to sweep problems under the rug. We think that the AMP’s will get the job done. We have an enforcement program now – going back to Connie’s point which is loggers, there is some degree of discretion here. They have to make judgments, and there are risks in those judgments. We have a job to do which is to keep on their behinds and having an effective enforcement program is going to keep them honest. We’ve had a most extreme case in (inaudible) logging where we had a very recent decision, but it stands for the proposition that we can enforce the AMP’s and get some serious penalties if people are not doing the job right. That was a very extreme case.

SEN. READY: Okay, I think we probably want to hear from Kerrick who is representing AIV and also from VNRC. Are there any other questions for the Agency on the process or on the language? Yes.

SEN. CANNS: Just one last question – and it still isn’t clear in my mind – the applicants want to change this, is there anyway we can probably hear from them so we’ll know what they’re looking for, what result they’re looking for, then I understand what you’re saying, but I don’t unless I know what they’re looking for.

SEN. READY: We’re going to hear from them.

-----: Can I just go back for just a second – and not to (inaudible-someone coughing) – the business between Class A water and outstanding resource waters, and then I guess if VNRC (inaudible) tell my why they put both petitions in and not one or the other.

MR. RAUBVOGEL: I won’t speak for them. I will say the difference between a designation of outstanding resource water and Class A is under the water quality standards it says where the Board designates waters as outstanding resource waters, their existing high quality shall be protected and maintained. So it seems to kind of add just another layer, another affirmative obligation on the Agency if particular aspects of those waters have been identified through this outstanding resource water process, and the statute gives all sorts of criteria that are supposed to be looked at, the water’s value, its fish habitat, the water’s value in providing or maintaining habitat for threatened or endangered plants or animals, those sorts of criteria, that the Agency would have a further obligation to protect and maintain those values or that quality. Now how is that different than what we already have to do under Class A? I’m not sure I could parce that out for you. This is not something that there’s a lot of experience since there haven’t been cases, and VNRC may have an opinion about it.

SEN. RIEHLE: Can I just ask a question in terms of the language that is in the Senate draft, you’re being directed by this language to assure that logging and recreational uses are continued. Does that in any way negate in your mind your other obligations for protection of habitat and …..

MR. RAUBVOGEL: I think there’s a way to make this language a little more direct and more specific so that it doesn’t have that effect, but one example that I would have is (interrupted)

SEN. RIEHLE: Do you think it does that?

MR. RAUBVOGEL: Well, I think that, for example, somebody might argue that if you tried to bring an enforcement action for some violation of the AMP, for example, for a ------tory proceeding, we are now prohibited from doing that because we’re supposed to assure that logging can continue. Or there might be other kinds of violations.

SEN. READY: Well, let me ask you, let me read this other again which has more of Bob’s in it, references his. Water reclassification - in a Water Resources Board reclassification case on so-called Champion Lands which are subject to working farm or forest or public access easements, the Agency shall ensure that accepted management practice for logging or traditional recreational uses are not restrictive.

MR. RAUBVOGEL: I understand that, and I think that’s something the Agency could understand and could implement.

SEN. READY: What don’t you like?

REP. HELM: I like to be more to the point, and I think my language is more to the point. He also, Madam Chair, with all due respect, there was a lot of conversation on this, and I wouldn’t feel comfortable without my committee especially and really without many members of the General Assembly approving it or at least reviewing this before I (inaudible).

SEN. READY: Well, I can’t (interrupted)

SEN. RIEHLE: We can’t get into that. That may have to happen in the committee of conference.

SEN. READY: Yes.

SEN. MacDONALD: I’m glad Bob’s here because I’m trying to understand the differences between what are being proposed and other people are proposing. We’ve had many conversations in this room with the tape running and in the hallways where folks have said, gee, Bob, the language coming from over the House is well intended but it really doesn’t do all that much because it’s going to happen anyway. I’m worried that we would put something into law that a couple years later people would say, well, gee, we thought we had that protection and we thought that was covered but it turns out it doesn’t do that much, and I’m sure that (inaudible) would like to see that happen.

SEN. READY: That’s a good point.

SEN. MacDONALD: There’s Class A and then there’s really, really Class A. I don’t understand that.

SEN. READY: Well, let’s hear from the other parties, and we’ll give Bob some language, and he can take it up with his committee or do whatever he wants with it and get back to us and tell us he likes it or doesn’t like it. Kerrick, do you want to talk about this?

Kerrick Johnson
Associated Industries of Vermont

My name is Kerrick Johnson. I’ll be brief. I guess I’ll start with water. I’ll guess I’ll restate, again, our position in the House was rather than trying to write amending these things in the legislation which ultimately (inaudible-door slamming) if you’re looking for some more time to work on the easements themselves, but we had the language (interrupted)

SEN. READY: How is that going?

MR. JOHNSON: We have a lawyer who is putting together a draft for us now. We should have it by Monday. They agreed to get back to the Vermont Land Trust folks. And again I’ll say just as a matter of principle we don’t think it’s a good idea to have statutory changes in the midst after a petition has already been filed. So I’ll repeat that. But we don’t think it’s a good idea for the Legislature once a petition has already been filed to restrict the petition process, frankly, but I do still have some questions after hearing. So having said that, the language is here. I think both Sen. Canns and Rep. Helm raised some interesting questions. I always have not yet understood – I did have one very brief conversation with Al – does this reclassification language address the outstanding resource water designation at all. Is a designation the same thing as a reclassification? I don’t know. Secondly, though, I would say that – and Rep. Helm has tried to get to that – I remember in looking at the statute regarding outstanding resource water designation, there are a number of criteria, 8 or 14, I just can’t remember which number it is, I think scenic resources, cultural resources, a whole litany of stuff, and in the petition itself it is very clear that they’re looking at more land-based strategies to ensure that outstanding resource water designation which will cover 96,000 I think plus acres that that in fact happens. So am I concerned about the impact of the outstanding resource water designation on logging? Absolutely, absolutely. We still think as a matter of principle it is not a good idea to go after it in statute, but I would urge the committee to continue to get some answers to those questions. I don’t know if this reclassification even subsumes (interrupted)

SEN. READY: Well, we could add – we could say in a Water Resources Board reclassification or designation.

MR. JOHNSON: You could. It’s not clear to me exactly – and I agree – I’ve heard it before that there won’t necessarily be any regulatory programs that the Agency would administer if the outstanding resource water designation was successful. But I don’t know how you’re going to affect the land-based strategies to control activities that the petition seeks to control without doing that. I just don’t know how you would affect control of the environment. And I’ll be glad to be educated, be enlightened on it.

SEN. READY: Okay.

MR. JOHNSON: But, probably more specifically or more parochially with regard to the land management section on page 2 of the draft no. 3 that I have, I have some questions, perhaps some suggestions I’ll throw out given that this is the approach at hand. It does say in the first sentence: maintain working forests and instill working forest easements that includes privately owned or maintained lands. My understanding is – I’m not sure if there may be a better word other than includes that might be necessary – the working forest easement – there won’t be any working forest easement on the state or federal lands. There may be another word other than “includes” you might want to use. And here again the House language (interrupted)

SEN. RIEHLE: Because if you want it to be applied to privately owned lands and managed lands by using the verb “includes,” what happens?

MR. JOHNSON: Well, I think the location of “includes” is that there’s other lands that are part of this deal that are going to be subject to the working forest easement, and I don’t believe that is the case.

SEN. RIEHLE: What if they’re not subjected to it, what power would this hold over it?
MR. JOHNSON: Probably none. For purposes of clarity. The language in the House version was a little bit stronger with regard to – the House language before it went through its list of priorities and its list of issues it sought to be addressed, just had a very matter of fact statement that shall be included as permanent easements and (inaudible) camps (inaudible).

SEN. READY: Where’s that?

MR. JOHNSON: That’s on page 60(a) of H.130 as passed.

SEN. READY: Under what section is it?

SEN. RIEHLE: Under camps?

MR. JOHNSON: Right before camps, the last line before camps in the House-passed version, the last line before camps.

SEN. READY: Yes, but the reason I thought that it wasn’t very strong is because it only deals on those lands that are protected by easements, and you’ve got all that land that isn’t – well, I guess Gus did say – did you say all of it is going to be protected by easements?

MR. SEELIG: All but federal land, and I think that’s what she was trying to get at yesterday, Madam Chair, to respond to some of the concerns other courts have raised about federal land.

SEN. READY: See, what ours says is – it says through easements and through agreements with its state, federal and private partners, so we try to include not just the lands (inaudible-several people talking at once). On our version of number one we’re not just trying to protect the land that’s under the easements; we’re trying to protect it all including the federal.

-----: What page is that?

SEN. READY: On the latest draft, pages 1 and 2.

MR. JOHNSON: A part of our perspective here is based on, we have a letter signed by the Governor and Gus and Darby Bradley that says the easement language will require (inaudible) which will meet the economic objectives of (inaudible) investors (inaudible). And in the House that said it will have to be an easement, but it says “designed to meet” the economic objectives of (inaudible).

SEN. READY: Yes, but we say that later on; it’s just different diction.

MR. JOHNSON: Right. The only thing that I was asking about more than anything else was given that the over-arching sentence that applies to camp, recreation and land management is it “shall seek to ensure.” So it’s basically the relative statutory strength (interrupted)

SEN. READY: Right. That’s where we got – they asked us for flexibility, so you know, you’re trying to please everybody and are pleasing nobody as you can see.

MR. JOHNSON: I guess in regard to the lands – section 3, land use – and this is after talking to a couple of foresters, and because of our position in the House, we didn’t really get into the nitty gritty language in regard to conditions, but one thing I can at least throw out is that in the last sentence where you talk about net growth (inaudible) forest (inaudible) re-stock, for your consideration say once the forest is re-stocked to at least C?-line level stocking which is a silvacultural guide. From my understanding from speaking with foresters – and I’m not one – but if you want to manipulate the species and these sorts of things, it could be argued, well, it’s not re-stocked yet because it’s not an A-level stocking which basically means that there’s not some that are hitting the forest floor. So if you want to talk about flexibility (interrupted)

SEN. READY: The sunlight is drilling through the forest floor at this point.

MR. JOHNSON: Well, (inaudible) says that it provides nutrients and energy to the things that need it down there.

SEN. READY: I’m not arguing; I’m just recounting what I’ve seen with my own eyes. Sunbathing could have occurred on the forest floor at this point.

SEN. RIEHLE: That’s one of the protected recreational uses.

MR. JOHNSON: So for your consideration once the forest is re-stocked to at least to C-line (interrupted)

SEN. READY: So as soon as they grow – whssst.

MR. JOHNSON: You’re going to have to have an approved forest management plan. You can’t simply go in and whack anywhere you want.

SEN. RIEHLE: Unless it’s under 25 acres.

MR. JOHNSON: So that’s my comments on Section 3. I was just reading while I was sitting here. I did have a question. Under “the Agency of Natural Resources shall,” in number two under plan and involve the community, in my obtuse nature I didn’t understand what “it” refers to – the very last word “it.”
SEN. READY: The Agency.

SEN. RIEHLE: The loggers?

SEN. READY: Do you have any opinion on dogs?

SEN. RIEHLE: Hunting dogs we’re talking about.

MR. JOHNSON: Hunting dogs, no, I don’t.

SEN. READY: Any questions or comments for AIV? Thanks a lot, Kerrick, for all your work on this. VNRC? Chris or whoever is going to go.

Chris Kilian
Vermont Natural Resources Council

For the record I’m Chris Kilian. I’m general counsel at Vermont Natural Resources Council. Thanks for the opportunity to come in and address the committee. First, I would say that just as background I’m here to talk about the water classification issue. Other staff from VNRC is here as well. They may have comments on other parts of the bill, but I was responding to a specific request to come up and explain our petition. First, I would say again that we support the sale, transaction, deal, whatever you want to refer to it as, and therefore, we support the appropriations.

The intent of our petition – let me address that first, and let me put it in context first. At the time we filed our petitions what we knew was that from our perspective, there were some very high quality and unique water resources in the Nulhegan River Basin, that the Agency of Natural Resources considers streams in that area to be of reference(?) quality which is the highest quality, the quality that you compare other streams in the state to, to figure out what they should look like.

-----: Like bragging rights?

MR. KILIAN: Bragging rights. That there are unique bogs and wetlands, that there are important ponds that have very unique characteristics in the state, and that it’s also unique in terms of its overall ecology because it’s in the transition between the northern hardwood eco-region and the northern (inaudible) eco-region so you have a high level of diversity in terms of the land resources. It’s a very important deer yard area, considered to be a prime candidate – with streams up there are prime candidates in the effort to bring the Atlantic salmon back to the Connecticut River, and there are salmon fry currently stocked in the Nulhegan. Of course, we all know that today an adult salmon leaving from Long Island Sound couldn’t get back up there, but the point is that people are putting a lot of money and effort into trying to bring those important fish back. It’s also very unique geologically, so we felt looking at a very substantial set of facts which we derived primarily from work that was done by the University of Vermont and Nature Conservancy and first and foremost the Agency of Natural Resources – we didn’t go out and do any monitoring; we just looked at what the fisheries people were saying, what the water quality people were saying, the wetlands people were saying. We knew that at the time we filed our petitions. What we also knew was that Champion was proposing to sell this land, and we didn’t know who was going to be the ultimate owner at that time. And there were all sorts of factors that made us concerned about certain types of activities that might have taken place that would have limited the public’s ability to use the lands, would have caused limitations on a lot of traditional uses that we think our petitions would support such as hunting and fishing and trapping, that we could have ended up with some level of development along here based upon what we knew about some of the other players who were coming into New England who might become the ultimate owners. And so we were concerned through what legal tool was available to us to seeing that the current quality of the watershed was to the greatest degree possible recognized and protected. And of course, that context has changed now. The intent of our petitions was to protect that clean water and those uses.

After we became aware of the Conservation Fund and other involved parties – the Conservation Fund would be purchasing the land, and other involved parties, such as the state and federal government and Vermont Land Trust, would be working to come up with the ultimate disposition of the ownership and management, we went to VLT and CF and said would it make sense for us to put our petitions on hold; we would like to know more about what your ultimate intentions are; and they said, well, we can’t really tell you what our ultimate intentions are at this point because that’s not public information, but, yes, it would make a lot of sense for you to put them on hold. And we said for how long, and they said, well, why don’t you put them on hold until April because the earliest the proposal(?) could be is March, and then we can re-evaluate everything. And so we did that. We still didn’t know at that time what the ownership would be, what the management would be, so we felt it was important for our position to maintain (inaudible). And that’s the way we continue to feel. We still feel that the water quality needs to be protected. It may be fully protected on the working forest easement lands, through the easements. We, like Kerrick, are trying to work with VLT and provide our concerns to them so that we can see what they can do with regard to easement language and have already gotten some positive feedback on where we’re heading.

The intent of our petitions was never to bring wilderness designation to this area or to seek to lock up the lands or prevent traditional uses but to protect the water quality. We recognize that logging will continue to take place on the lands where those management decisions are made. We also recognize that even if we didn’t have our petitions in, the logging activities that will take place up there will probably look substantially different than they have in the past because of what we know about VLT’s easements already. And we want to work with them to the greatest degree possible on that process and with the Legislature in that regard.

In terms of our concern with the House language, I guess my first comment is that we at VNRC either through failure to communicate with Bob and others who are working on the easement language or just through the circumstances, we didn’t have a lot of advance notice or time to respond. We basically saw this language when it was proposed in the caucuses immediately before the floor debate on the House Fish and Wildlife (interrupted)
SEN. READY: Oh, so this didn’t come out of your committee? This wasn’t in (interrupted)

REP. HELM: Well, it came (interrupted)

SEN. READY: Oh, it did, okay.

REP. HELM: The day before it went on the floor.

SEN. READY: Okay.

MR. KILIAN: And what I was trying to relate is that for whatever reason, I’m sure due to our failure, we were not involved in that discussion, and when we saw the language, we had a couple of concerns.

SEN. READY: So you guys didn’t go in and testify?

MR. KILIAN: No.

SEN. READY: Why not?

MR. KILIAN: I can’t respond to that. I don’t know, maybe Steve can respond to that.

MR. HOLMES: I didn’t know about it.

MR. KILIAN: The first we saw this language was when it was presented in a Democratic caucus and a Republican caucus on the day of the floor debate in both.

SEN. READY: I do have to say - this doesn’t really relate to you - but I hate it when people come in and say, oh, we never saw this one. The committee has been working on it for (inaudible).

MR. KILIAN: I can understand that. We had two concerns with the House language. The first was and continues to be with regard to the Legislature, without looking at a full petition or without considering it with the overall program, changes the way a longstanding set of laws applies to a particular case, and it goes to what Kerrick said – I guess I would agree with him – that as a matter of principle and in general, we don’t think it’s good public policy for the Legislature to step in to try to affect a specific petition. I would also indicate – and I feel compelled to put on the record – that we question to what degree any legislative act can actually affect our petitions. I know that raises hackles, but I feel compelled to say it because of what Title I says with regard to ability of the Legislature to affect (inaudible) causes. I think the Legislature has full authority to direct the Agency to be involved in processes in whatever way, but in terms of eliminating the effect of a water reclassification by the Board, I (inaudible).
SEN. READY: To me, that kind of goes back to what Senator MacDonald was saying, I’m afraid to put something in that really doesn’t do anything. You know what I mean? And to give people the notion that they don’t have to worry about it when in fact they do. What I’m afraid of is a lot of this stuff doesn’t do anything, quite frankly. I don’t think that any of this stuff does much.

MR. KILIAN: From our perspective (interrupted)

SEN. READY: The private foundations are running the state, aren’t they?

SEN. MacDONALD: That’s not my concern, so if you’re going back to what I was saying (interrupted)

SEN. RIEHLE: The private foundations, or (interrupted)

SEN. MacDONALD: Somewhere, sometime, someone is going to contest some building of a VAST bridge or cutting down some tree somewhere, and there are two sets of language that are being sort of proposed, and under one set of language will decision be made by a different group of people than the other set? Will the end result be different than with this language or that language? And if it’s going to be different, I’d like to hear the difference. And if it isn’t going to be different, then I (interrupted)

MR. KILIAN: What I would like to do is go through basically – if it’s appropriate and the committee is willing to listen – four different language approaches that we’re aware of at this point, and I’ll go through them as quickly as possible. The first is the House proposed language, because I think it’s important to look at that language first because it conforms with what the House ultimately passed. Our concerns with that language were that basically it didn’t include the language at the end of the current House-passed language that says: unless the Secretary determines it will be necessary to affect primacy. Without that language what the proposal appeared to do was say you can reclassify it, but through that reclassification, the Board’s order cannot be enforced against logging that might cause a water quality impact or recreational uses that might cause an impact. And that raises two concerns. One is from a public policy perspective, is that appropriate, and given the fact that ORW and Class A have been recognized and adopted through past legislative acts and through rulemaking proceedings at the Board, and second, other states have tried to do that and EPA has said you can’t do that. In the state of Maine they tried to do it with a reservoir a couple of years ago legislatively, and EPA said, fine, we’re going to take away your primacy over clean water act programs, and that happened. It was a two-year battle with them to get it back. So we raised this primacy concern. I think that’s where the primacy language comes from. I’m sure it really addresses the concern, but that’s where that language came from.

With regard to the current Senate draft – which I guess now is draft 3 – we have the same concern that I think was earlier discussed in the committee with regard to the Agency of Natural Resources other obligations under existing law and would suggest that on page 2 where it says the Agency of Natural Resources shall, we would add a clause at the ending that would say something like: consistent with these other obligations, the Agency of Natural Resources shall – and I think that takes care of the kinds of concerns that were being raised earlier with regard to the Agency’s ability to move forward and take care of water quality problems.

With regard to the language that was just proposed by Senator Ready, I guess (interrupted)

SEN. READY: Here it is if you want to see it.

MR. KILIAN: Okay. I have it written down here. I guess what I think this leads to is an evaluation by the Agency of Natural Resources prior to taking a position in a reclassification proceeding as to whether or not they will support or oppose that reclassification. And I guess I didn’t understand that to be the intent. What this says is that in the proceeding itself the Agency shall seek to ensure that AMP’s for logging and traditional uses are not restricted. And knowing what Andy Raubvogel mentioned earlier – which is that Water Board reclassification orders don’t include conditions; they just say it’s either A or it’s B – the Agency in order to ensure restriction or non-restriction would basically have to say it shouldn’t be reclassified or it should be reclassified.

SEN. READY: The Agency could make a determination that given the fact that all these things are pretty protected under the easements, that they didn’t see a need to reclassify.

MR. KILIAN: But the end result still is. It has nothing to do with the Agency’s subsequent authority which is the Agency has to (inaudible) and has the obligation to do basin plans and figure out appropriate management plans to implement (inaudible-someone sneezing). I guess we have felt and our efforts to date have been to inform that process, not to restrict or limit what the Board does or to urge anyone to restrict or limit what the Board does, and whether the committee agrees or not, that’s been our goal. The way this normally works is you go forward, everybody comes in, the Board decides to reclassify or not. It’s either A or it’s B. And then the Agency through its normal basin planning and watershed management processes figures out what the appropriate management is in the context of that classification.

SEN. READY: Has the Board ever reclassified when the Agency opposed it?

MR. KILIAN: My experience has been that the Agency generally doesn’t take a position on reclassification, that the Agency has shown up and provided information to the Board and hasn’t generally come in – not that they – I mean, the Agency could go forward on its own and propose reclassification. They have never done so. The Agency could take a position, but even in the most contentious cases, it has not been my experience that the Agency has taken a position. The Board orders have included to some degree language saying we think certain types of activities can take place here, particularly with regard to ski resort developments Board orders will include a section that says this is what we think the effect of our action is on skiing. But that doesn’t have any force and effect going forward. It’s more reassurance I think for those parties who came forward and expressed concerns. With that said, I guess the bottom line is that we think the approach chosen in the current Senate draft is the appropriate approach, that the Board should be left to decide pursuant to the state laws and programs that have been in effect for in the case of the Board a little over a decade and in the case of reclassification for almost 50 years. Without any specific changes for specific petitions or resources the Board should go ahead and decide, and maybe in the end if petitions aren’t warranted, that’s why we’re working with the Land Trust, but that should be the approach and then this body should direct the Agency to manage to the degree it sees fit. We support the language that’s been proposed by Senator Ready in terms of ensuring logging continues and traditional recreational activities.

SEN. READY: How about dogs?

MR. KILIAN: I have a hunting dog – not for bears – but we don’t have an organizational position on that issue.

SEN. READY: Nothing against them?

MR. HOLMES: We don’t have anything against them.

SEN. RIEHLE: They’re neutral.

SEN. READY: Thank you, Senator.

MR. KILIAN: I will say that we believe strongly that our petitions along with the easements in the direction the easements will enhance fishing. We have been a strong supporter of sportsmen and anglers in many proceedings. We try to work closely as much as we can with Trout Unlimited and Federation of Sportsmen’s Clubs. Sometimes we do; sometimes we don’t. But we have good working relationships with them. We think that it will enhance hunting, and we think that it will enhance trapping.

SEN. CANNS: Senator?

SEN. READY: Yes. I just want to wrap it up.

SEN. CANNS: Okay, I just want to ask a couple questions. You have indicated I think why the petitions were submitted, but I’m wondering now that the issues have changed, if you could under any circumstance withdraw this petition and how important is it to you now with all these rules and regulations that we’re going to see based upon this property.

MR. KILIAN: That’s why we’re working with the Land Trust. We think that these waters deserve Class A protections, and our goal would be to get to the point where that’s well defined enough that everybody feels that same way. We’re trying to get without impinging upon – we’re willing to say if we can work with VLT to the point where they say the easements will do this and we say, well, that’s what we thought an ORW will do, we’ll sign a private agreement that says we won’t ever claim that ORW means anything different than that. But we still would like to see that designation go into place because it is an important recognition under state law. If that can’t work out, we’re not inflexible. That’s why we put the petitions on hold. We’re trying to work constructively with the other folks involved to figure out how the lands should be managed so that we can inform our decision in that regard.

SEN. CANNS: Well, the only thing I can figure out on this – we’ll be hearing this again, and we’ll be listening hopefully to Bill Bartlett because we don’t understand why it’s so paramount in importance that you have this petition (inaudible)agree there’s going to be a lot of easements and what not on it. Paul(?) Stream is probably the one you’re addressing mostly. It’s very good fishing (inaudible).

MR. KILIAN: It doesn’t apply to Paul Stream.

SEN. CANNS: It doesn’t? Okay.

MR. KILIAN: It applies only to the Nulhegan River and its tributaries.

SEN. CANNS: Just that basin that the federal government is involved with.

MR. KILIAN: No, because the definition of Nulhegan Basin that the Land Trust is using and that the federal government is using excludes the East Branch of the Nulhegan River in its entirety, and out petitions apply there as well. We’re looking at the whole watershed, not what they have defined as the federal basin.

SEN. CANNS: I think that’s what spooks everybody. Okay, thank you.

SEN. READY: Okay. Thank you, Chris. Any other comments for Chris? Thanks for all your work on this and thanks for coming today. What does the committee think?

SEN. -----: About what?

SEN. READY: About all the language before us.

SEN. SPAULDING: What are you thinking about the new version of the water reclassification language?

SEN. READY: I don’t know. I’m just trying to come up something Bob would like more than anything.

SEN. SPAULDING: After the last comma there, that says that the Agency shall ensure….. The small point is I don’t know which insurance company you’re going to use, but the main one is that that’s pretty strong. How can they do that? They can’t do that, can they?

SEN. READY: Well, they can’t – they aren’t a lawmaking entity, but they can go in and say that, you know…..

SEN. SPAULDING: I look back in the first form we use – and some people don’t like this either – shall seek to ensure.

SEN. READY: Well, I’m just trying to please everybody.

SEN. SPAULDING: When you say shall ensure, that’s like telling that they have to go in and blow the place up if they can’t – that’s the only recourse, right?

SEN. READY: Jeb, whatever people want to do is fine with me. To be honest with you, I don’t think any of it amounts to much. So to be honest with you, if you want to go with Bob, if you want to go with the first one or the second one, I don’t think any of it amounts to much. I think it’s too bad for the Legislature to take a position that appears to try to settle an existing case. I don’t think that that’s a great way to go. I’m trying to address the House concerns, and so these are two versions, but any other versions probably do just about the same thing which is almost nothing.

SEN. RIEHLE: Hm. Well, I raise the issue, I’ll tell you where I am right now. I like your – the shorter language, the one sentence. I don’t like the elongated one because I don’t think it really says anything.

SEN. READY: I was trying to (interrupted)

SEN. RIEHLE: I understand that we’re trying to use other language, but I don’t think it’s as clear and doesn’t add anything but just is longer. But I also believe that if we’re going to at least tell the Agency our wishes – which is what I think this does and that’s all – part of my wish is that they also are consistent with their existing statutory obligations and authority, but my wish isn’t that all they care about in water reclassification is logging and recreational uses. I don’t think they would approach it that way, but I don’t want it to be misinterpreted.

SEN. READY: So what would you propose, Helen?

SEN. RIEHLE: Well, I think at the beginning of the sentence you say consistent – it’s kind of like what we did with I guess Public Service Board – consistent with, I don’t know, their statutory obligations.

MR. BORIGHT: Other statutory obligations.

-----: Law.

SEN. RIEHLE: Or law. With current law or something. We’re asking them to participate in the proceedings to assure that (interrupted)
SEN. READY: How about if we add accepted management practices for logging because I think that somebody made a good point. Just trying to make it look more like Bob’s. But if that isn’t important to the committee, I don’t really know.

SEN. MacDONALD: I am not persuaded that there’s any difference between the Class A and that other designation that seems to be bragging rights, but there’s no testimony that says that a logger that wants to cut something down 20 years from now would be treated differently under A or under the bragging rights language. And if there isn’t any difference, then we’re back to who’s going to make that decision 20 years from now and who do we at this table amongst the people think ought to make that decision. But if we agree on how a decision ought to be made then, then let’s write the language that – have it happen the way we agree it ought to happen.

SEN. READY: Okay, Helen has (interrupted)

REP. HELM: I think – I’m sorry.

SEN. READY: Go ahead, Bob.

REP. HELM: I agree with Liz. All we’re doing is a little window dressing here. I’m just trying to get some language in there that gives myself and my people and the constituency out there at least the security that we attempted to cover the bases in the name of continued traditional uses, and that’s where we’re at with this thing. And I agree with you, you know, we’re going to go back to work and the mice will play.

SEN. READY: The foundations are going to run wild, and that will be the end of it.

REP. HELM: It won’t be the end of it, just the beginning of it. Anyway, I’m sorry (inaudible).

SEN. RIEHLE: I don’t disagree with that.

SEN. CANNS: I’m slow on this but I still can’t get a clear picture of what the difference is in classification, and until I get that, I’m just confused. I want to hear Bill talk about it before I make any decisions.

SEN. READY: Well, Bill will come in on Tuesday, but he’s not here today, so we (interrupted)

SEN. RIEHLE: Okay, but she just asked us where we were, and that’s where I am, so I suppose understanding the designation versus reclassification will help.

SEN. READY: Let me ask the committee two other questions. How do you like the dogs?
SEN. RIEHLE: Do I want some hunting dogs in?

SEN. CANNS: I like my dog.

SEN. RIEHLE: Well, you know, again, it’s sort of the comfort language, right? Because when I read traditional hunting I’ve been told that it’s traditional and that (interrupted).

SEN. READY: Well, they seem to like (inaudible).

SEN. RIEHLE: …..hunting dogs, so I’m not going to argue that.

SEN. MacDONALD: Traditional and lawful.

SEN. RIEHLE: Traditional and lawful.

SEN. READY: Well, I would suggest that we put it in specifically since it seems to be important to some people, and I had a chance to meet with some of them last night from the houndsmen and the commissioner, and he seemed to think that it would mean quite a bit to people to have it in, put the dogs in.

SEN. RIEHLE: Well, our intention was to cover it, so if it brings comfort to include it, it’s fine with me.

SEN. READY: Okay, but I’m moving as one senator that we add the words back in that were in the House version.

SEN. RIEHLE: And do we do it under our recreation definition? Can we do it with collaboration with federal authorities as well (inaudible) there, too.

MR. BORIGHT: Are you talking about trained hunting dogs?

SEN. RIEHLE: Are we talking about the training or the use of hunting dogs?

SEN. READY: Both.

SEN. MacDONALD: The lawful use of…….?

SEN. RIEHLE: Hunting dogs. Well, we have use of land for traditional and lawful recreational uses including – and then we say hunting dogs as one part. The lawful use includes training (interrupted)

MR. BORIGHT: Training and using hunting dogs?

SEN. RIEHLE: Well, that’s the lawful use, right? I think you just have to say hunting dogs, don’t you?

SEN. READY: Yes, hunting dogs. Okay, let me just ask the committee, would they like to have the dogs in?

SEN. RIEHLE: Yes.

SEN. MacDONALD: They’re already in there.

SEN. READY: Okay. Straw vote – yes, I want the dogs in. Do you want the dogs in, Julius?

SEN. CANNS: Sure.

SEN. READY: Do you want the dogs in?

SEN. SPAULDING(?): Sure.

SEN. READY: Do want the dogs in, Bob?

REP. HELM: Yes.

SEN. READY: Do you want the dogs in?

SEN. MacDONALD: No.

SEN. READY: Okay. So let’s in the next draft put the dogs back in. Now, one other question is what do you think about buying the whole thing?

SEN. CANNS: I think it would be great if we could.

SEN. READY: I mean buying the federal piece.

SEN. CANNS: Yes. If we can get it.

SEN. RIEHLE: And not do what? What’s the trade off?

SEN. READY: Instead of having a federal park, just to have that part be safe, and then we don’t have to worry about the camps and the (interrupted)

SEN. RIEHLE: No, I understand, but what would happen? I mean, what dollars are you talking about, two lumps?

SEN. READY: The federal, 7.(something) million.
SEN. RIEHLE: I mean what state dollars are you planning to use to make the purchase?

SEN. SPAULDING: Where are we going to get the 7 million from?

SEN. READY: I’m just throwing it out, you know.

SEN. RIEHLE: Would you like to buy it with borrowing?

SEN. MacDONALD: No, are you saying you want to buy what’s proposed (inaudible)?

SEN. READY: I’m saying instead of having the feds (inaudible-several people talking at the same time).

SEN. RIEHLE: It’s an additional six and a half, so we’re talking about 12.

-----: It’s at least six and a half. It’s the most valuable portion of the property.

SEN. MacDONALD: Is this a druther, or are you asking if we appropriate the money?

SEN. READY: No, I’m asking the committee for discussion, you know. I don’t see the earth shaken because I asked the question.

SEN. MacDONALD: I think it’s a fine idea, and I hope that someone would cough up the money to do it, and I’d be delighted, but in the absence of that, I’d see the bill passed (interrupted)

SEN. SPAULDING: (Inaudible) it’s going to be a lesson to think that the state is going to be able to come up with 11 or 12 million dollars for this deal.

SEN. READY: You what?

SEN. SPAULDING: I’m just giving you my own opinion. I think that it’s unrealistic to think that the state itself is going to come up with the money for this deal and particularly to do it anytime in the near future, so I really worry that if this deal is contingent upon us – I mean, you asked; I’m giving you my opinion – in the hypothetical, great, but it would be nice to do a lot of things out there, and the way I look at it is – really, to tell you the truth is, we’ve got a pretty balanced proposition here of 130,000 acres, 80 – some would be private, 27 or something that would be federal and 25 or 7 that are going to be state.

SEN. MacDONALD: If everybody puts a check in escrow between now and the time it comes on the floor (interrupted)
SEN. SPAULDING: All right, that’s fine.

SEN. READY: Okay, listen, I’m just asking the committee. I think a lot of people have asked us to do that, and I think it bears to have some discussion. The public has a lot of concerns about the federal ownership, so I’m just throwing it out. If the state ownership included those two parcels, we could go a lot farther to assure the camps and the traditional uses and everything else.

SEN. SPAULDING: Don’t forget, if the state owns it, then we’ve got to double the carrying cost, too, and we already can’t af - - - the same people will come and say we can’t afford to deal with what we have now, where are you going to get the money to double it?

SEN. READY: Well, we’re buying all kinds of paintings and computers as you know.

-----: We’re not buying all kinds of them.

SEN. READY: Well.

SEN. SPAULDING: We are buying all kinds of computers. (laughter.)

SEN. RIEHLE: But they’re all IBM, right?

SEN. READY: Well, there is a painting that is upstairs.

SEN. MacDONALD: It’s not this committee’s responsibility unless they’re landscapes.

SEN. CANNS: That particular issue was brought up by primarily by some sportsmen, and the idea was that the (play?) would help to raise the money, and they wanted to float a bond issue. It’s about 8 million I think they had in mind. There are some wealthy sportsmen, believe it or not, and they were concerned, not with the state paying the whole freight, they were concerned with the (inaudible) people having to pay for this freight and with that in mind the purpose was – as the chairman did allude to – they were concerned that the federal government would put a lot of prohibitions on this land. Somebody has got maybe a (inaudible) trees and you can’t go on it – this is the philosophy – so what they’d like to do is if they had time to raise money is to buy it. Will this be something that the Legislature would entertain? That’s what (inaudible).

SEN. SPAULDING: I’d definitely say yes if it was timely. What would you say, Mark?

SEN. MacDONALD: Fine. If everybody puts some money in escrow to do such a thing, I’d support a floor amendment to allow exactly that.

SEN. READY: You know, remember we had bonds? What kind of bonds did we have when I was down in Finance – some kind of bonds you could buy that did X or Y – conservation bonds, municipal, I don’t know. Who remembers? Anyone that was on there?

SEN. SPAULDING: The only thing I’m asking, Julius – you probably know more about it than I do – couldn’t that – we wouldn’t know the answer to that for quite some time, would we?

SEN. CANNS: All they want to know is if this is something that the Legislature would approve, that they could go ahead with this idea in mind, or would you preclude that? I’ve asked the U.S. Fish and Wildlife the same question, and I’m not getting straight answers. Larry D--------, who you’ve heard (inaudible), agreed that it might be a good idea. The other fellow (inaudible) so we’re in the middle of it.

SEN. READY: Anyway, I think it’s something worth discussing.

SEN. SPAULDING: Maybe we ought to ask the people who are (inaudible), the Land Trust or the Housing and Conservation, the main people that putting this deal together. I don’t know who else to ask if you really want to get to it. I’m not trying to be mysterious about it, Julius, but I’m saying I think it’s a fair to ask back how much do you need – I can’t say, yes, let me know two years from now.

SEN. READY: Well, I think I’d like to talk to the Governor.

SEN. CANNS: No, they realize that this is a fast deadline. They think it’s a little too fast because they haven’t gotten (inaudible) and weren’t aware of the conditions, and they would like a little time on it to say, well, if you say yes, then we’re going to try to raise the money.

SEN. READY: Even David Deen said that to me today. He said, you know…..

SEN. SPAULDING: What? He said what?

SEN. READY: That a lot of the problems that we had with the whole deal is because of the speed of it, you know, and you can’t touch one hair on the head or one comma or have any thoughts.

SEN. SPAULDING: Well, you know how I feel about the speed.

SEN. CANNS: Well, the groups would rather see it under state control is what it amounts to.

SEN. READY: When you have a lot of people that live there that say they think it’s a good idea that the state owns it instead of the feds and they’re willing to work to do it, then (interrupted)

SEN. SPAULDING: I honestly don’t have a feel for the people that are putting this deal together whether it’s all an interwoven kind of a deal.

SEN. READY: Oh, I have a great feel for it. I know exactly what they think.

SEN. RIEHLE: Which is?

SEN. READY: Don’t touch it.

REP. HELM(?): Why, though? Through all of our hearings – and we started this the week after we got here – the most hated part of this whole issue - and it is by almost everyone – I wouldn’t say everyone, but somebody must be in favor of it – and that’s the federal ownership because of their history. They’ve got a great track record of doing what they want. We cannot control them at all. (Inaudible comments.)

SEN. READY: See, my big fear is what’s going to happen after the Legislature leaves, you know, we’ve got this fluffy language that gives the values of Vermont and really does so, and I think (inaudible) sincere way both Bob’s language and whatever we come up with and basically you’re going to have most of it controlled by the foundations and the private owners, and then you’re going to have a big portion controlled by the – or an important portion controlled by the federal government, and the fact is there’s very little ability of representatives of the state to protect the issues that Vermonters care about through this language. I mean, everybody agrees. There’s not anybody that says that any of this does much, and if people really want to see certain things and this is a really important thing, I don’t know, it’s worth talking about, you know. People deserve that we have the conversation.

SEN. RIEHLE: What is the opportunity then to make this a separate bill so that if you want to really pursue whether it’s an appropriate trade off with using state dollars and maybe some private dollars that wealthy hunters come up with. You know, I don’t think there’s a guarantee that they’re going to be able to do that or even that I would support the trade offs that that would require because it will require some trade offs. If we own it all, it costs more to maintain it. So I don’t know what the numbers are, but that means that we can’t do something else in the whole budget development, and you know, I guess there’s an option to bond, but that probably would mean that we don’t bond something else. And I can’t tell you right now that that’s a really good trade off, that I would support that.

SEN. READY: I can’t either. I’m just bringing it up because I’ve heard it a lot, I’ve been up to the Northeast Kingdom, I was up (interrupted)

SEN. SPAULDING: Well, that’s not exactly what Julius is saying, though, right? I mean, I think what I’m hearing you say is that there are some people out there that want to raise the money (interrupted)

SEN. RIEHLE: Who believe that they can raise $12 million.

SEN. SPAULDING: I don’t know.

SEN. READY: Well, Bob and I were at a meeting last night of the Walleye Association.

SEN. CANNS: I’m talking about raising the U.S. Fish and Wildlife’s part.

SEN. RIEHLE: Yes, but that’s $12 million.

SEN. CANNS: No, it’s not; it’s seven.

SEN. READY: Well, Bob and I were at a meeting last night where almost all the groups were there, and one concept that came up was the notion that …..

(BREAK TO CHANGE TO NEW TAPE.)

SEN. READY: …..you know what I mean? So it’s not that it would be chopped up into little pieces but rather that – yes?

SEN. SPAULDING: I don’t know if it isn’t that or whether that kind of situation would – how that would mesh with the (interrupted)

SEN. READY: I know, it’s just a concept.

SEN. SPAULDING: I know.

SEN. READY: What you would have to do is have to do the research on it.

SEN. RIEHLE: Does anybody know if the Administration has pursued that at all? They aren’t here, are they?

(Some inaudible comments.)

SEN. RIEHLE: Pardon me?

SEN. CANNS: I haven’t heard that they had. This wasn’t on the table.

SEN. READY: I talked a little bit with Fish and Wildlife about it, the commissioner. I think that we could ask. It doesn’t preclude us from still voting on Tuesday to do exactly what they want us to do, it’s just a discussion.

SEN. SPAULDING: I unfortunately have to head out for an appointment, and I’m wondering whether we could just get – if this would be all right to hear from either Carl Powden or Gus Seelig or another (inaudible) to contribute to this little dialogue.

SEN. READY: Let’s do it Tuesday because I’d like to do the efficiency thing, if you can stay for one more minute.

END OF TESTIMONY AND DISCUSSION ON CHAMPION LANDS.