Testimony on Act 250 & ANR Permits
by Annette Smith, Executive Director of Vermonters for a Clean Environment
Senate & House Natural Resources & Energy Committee
February 2, 2001

My name is Annette Smith. For the purposes of my testimony today, I am wearing several hats.

This hat is the oldest. I am a citizen of Danby, Vermont. I live in a remote and scenic area that is supportive of agricultural enterprises. As a subsistence farmer, I hand milk a cow, grow all my own food, and have a small farm of 52 acres with about as diverse a mix of species, habitat, and natural resources as is seen in Vermont. All I ever wanted was to see if I could become self-sufficient, take responsibility for my impact on this earth, and do no harm to others.

Ten years ago I tried to protect my high quality spring water supply from a development uphill. The Massachusetts developer skirted Act 250 and ANR subdivision regulations, dividing the 66 acre property into 5 lots, all more than 10 acres, served by a new driveway 799 feet long. The hydrogeologist I hired told me if houses went in, in 3 to 5 years I'd be drinking septic waste bacteria. The first house went in three years ago, another went in last year. I am literally waiting for the s--t to fall.

Two years ago, a New York utility company came to my town and showed maps of their proposed high-pressure natural gas pipeline route. Their route crossed my land in one of only 4 places of the 63-mile route where it left existing utility corridors. In my neighborhood, it would have involved an 18-acre clear-cut, part of which was on the most remote portion of my property -- ironically, between the springs I was trying to protect and the new houses that have gone in uphill.

Last year, Omya, the well-capitalized privately owned Swiss mining company, announced their intention to open a brand new mine a mile from my house. The most direct truck route out of the scenic valley is the road I live on.

In both of these large industrial development cases, there has been no process through which to participate. Neither of them has yet filed a permit application. Even a cursory look at both of these projects yields enough information to see that they will not comply with the relevant laws, Act 248 in the case of the gas project and Act 250 in the case of the mining project. Yet, foreign and out-of-state interests are allowed to usurp Vermonters' time and resources for their own potential profit at our expense. I am very angry about these unwanted intrusions into my life, land, and pursuit of happiness, to say nothing about the negative impact that they are having on my fellow Vermonters. Nobody appears to be looking out for the citizens or the environment.

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This hat is kind of worn and stained. It's what I wear when I'm trying to earn a living -- my artist/manufacturer's hat. For twenty years, I worked in the field of arts, crafts, and music, making and selling products. I was working towards developing a market large enough to subcontract out the work to people in my community, but the marketing of my business has been put on hold as I have been forced to deal with the plans of others.

Recently, I testified as an aesthetics expert in an Act 250 appeal to the Environmental Board. It was my first experience with Act 250, and it was an invaluable education. The applicant, a major Vermont corporation, was unprepared and did not address the sole criterion on which the hearing was granted. The hearing officer spent too much time eliciting testimony that should have been addressed by the applicant. The process was inefficient and the applicant showed a lack of respect for the law. I felt as though I had witnessed a kangaroo court.

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I only wear this hat a few times a month. It's my Regional Planning Commissioner's hat, where I have had the opportunity to try and understand the role of regional planning commissions in the Act 250 process.

I chair the Community Issues committee, where we are dealing with issues of Smart Growth and Future Land Use, and we are discussing ways to utilize new natural resources maps that have been created state-wide using a variety of databases.

The regional planning commissions are performing an important role in developing cooperation between and within communities. But Act 250 was originally intended to have a generalized state land use map, not to be given the effect of law, but to be used as a frame of reference in preparing and adopting land use regulations. [Exhibit 1, Blucher memo, Oct. 1969]. Through no fault of the executive director, the staff, or commissioners, the regional commission on which I serve lacks guidance and direction, steering a course without a rudder or a chart. The regional planning commissions are dealing with development on a case by case basis, but no one is evaluating the cumulative impacts from development in the state over time.

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This is the hat I wear almost all the time now, my Vermonters for a Clean Environment hat -- it's white -- the non-profit grassroots organization, which formed as a result of the natural gas project, and of which I am now executive director. We have an active membership throughout Bennington and Rutland Counties. Five months ago we expanded our efforts to deal with Omya's proposed new mine in Danby.

Our job is to prepare for Omya's Act 250 case. And if not Danby, they will be in another community.

We have to raise about $200,000 to hire lawyers and experts. Although citizens don't usually learn about a development until an Act 250 application is filed, in this case the developer sent a proposal to the town of Danby over a year ago. You might think that has given us an advantage in preparing our case. It has not. A few months ago, Omya withdrew the preliminary plan it submitted, and we have no idea when or what they are going to file instead. Knowing the general scope of the project does not enable us to do much work prior to the complete filing. In fact, it makes it difficult to retain counsel and experts, because nobody knows when the case will become active. We can make phone calls and line up people, but they may not be available in 6 months or a year.

Once Omya files its Act 250 application, VCE will have a relatively short amount of time to develop our case before the District Commission, compared to the lengthy period of time Omya has had to prepare. Estimates are we will need at least a dozen witnesses at a cost of about $7,000 each. It will be difficult at best to put on our case at the District level, given the magnitude and extent of the project. We can expect an appeal to the Environmental Board, no matter who wins at the District level, and if Omya loses at the Environmental Board, they can appeal to the Supreme Court. We cannot.

Compounding the already complex job of learning the ins and outs of Act 250, raising money, hiring lawyers and experts, preparing a case against a financially sound foreign company, running an organization, and keeping the public informed and engaged, we now have to understand all the proposed changes to Act 250 and how they might affect our case.

I come before you today, literally with hat in hand, to tell you that after months of becoming educated about Act 250, the law and the way it is being administered, I have no faith that the citizens of Vermont can expect a fair hearing before either the District Board or the Environmental Board as things stand now. The goal of Act 250 now is to issue permits. Only 1.5% of all applications are denied. This means the environment is not being protected. The focus is on economic development and speeding up the process of issuing permits. The basic premise of Act 250, to protect the environment in concert with active citizen involvement, is no longer top priority.

From the moment VCE enters the room, we are at a disadvantage. Labeled by the process as "opponent", in the current political climate those who oppose are branded as opposed to economic development, against progress. Vermont citizens who should be viewed as welcome participants who often provide the only information the board hears about a project except what the applicant presents, all too often now are treated as obstacles to progress. There is so much pressure for the Boards to grant permits that we have to wonder why we should bother raising the money and putting on the case.

Recently the Environmental Board issued a permit to a South African granite quarry company that turned a pristine wilderness area in Sheffield into an industrial area. One line in the decision has sent chills through my neighborhood:

"The Board points out that when a purchaser of land acquires or otherwise invests in land in an area lacking a town plan and local zoning, the purchaser lacks any protections ensuring that the property will not be adversely affected or compromised by ensuing development or land use activities."
--Barre Granite Quarries, LLC
Land Use Permit Application #7C1079 (Revised)-EB
Docket # 739, Findings of Fact, p. 91, Dec. 21, 2000

Danby has no zoning. But isn't it the purpose of Act 250 to provide protections against adverse effects of development or land use activities? If they do not view their charge as protecting against adverse effects of development in towns without zoning, then what do they think they are supposed to be doing? Just issuing permits? In fact, under the law they are charged with protecting Vermont's environment and communities. But they are not doing that.

The approval of large projects often contains conditions under which the applicant must operate. After a permit is issued, the citizens are further burdened by being the only ones paying attention to whether the applicant is complying with the conditions of his permit. Without adequate funding or political will for enforcement of Act 250 permits, there really is no requirement to comply with permit conditions. Complain twenty times about the same infraction, with no change in the situation, and the average citizen will stop wasting time and give up.

I have been listening to the ideas circulating about how to fix the Act 250 process. The ones that make basic sense and seem to address the concerns of both developers and environmentalists are:
1) provide training for District Commissioners so there is consistency statewide and decision-making improves
2) establish a system to assist small projects with Act 250 applications
3) replace the volunteer 9-member environmental board with a smaller, professional board with legal and technical expertise.
On the gas project, the one thing we knew we could count on, despite the full weight of political support for the proposal, was a fair hearing at the Public Service Board. We do not have that same faith in the state Environmental Board.
4) establish a board nomination appointment process that takes the politics out of both District and State level board appointments.
5) fund enforcement

Thirty years ago, Republicans in Vermont cared enough about the environment and the principles of citizen participation to craft a law that has offered the opportunity to have a healthy balance between environmental protection and economic development.

Now we have a global economy, and Vermont's precious natural resources are ripe for exploitation. The citizens of Vermont have no protection, except for Act 250. There is no leadership in the state looking out for our interests, over the interests of large corporations. The Agency of Natural Resources is so crippled by underfunding, understaffing, and politicization that they rarely take part on the side of citizens trying to protect the natural resources in their communities. Our human communities are especially vulnerable. All we have is Act 250. And it isn't working because the commission and the board have lost their way.

Act 250 is exacting an uncalculated toll on those Vermont citizens who care about maintaining our quality of life and the things we love about Vermont. Nobody is even talking about the costs to those of us inadvertently caught up in inappropriate development proposals in our neighborhoods. We must find a way to address this unacceptable drain on our citizens' resources when large projects are proposed.

Please restore our faith in the process. Provide for consistency of nominations to board seats, based on the desire to enforce the law. Guarantee the people the right to a professional hearing on appeal. Affirm the public's right to participate in the process, and extend to all participants the right to appeal to the Supreme Court. Assemble the state natural resources map and take a look at the big picture. Future generations will thank us, as we now thank the generation that gave us Act 250.

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Non-rebuttable ANR permits & Duplication of Process

VCE's experience with ANR permits comes through our attempt to unravel the mystery of Omya's permits. Air and hazardous waste permits appear to be handled professionally and with some accountability, but discharge permits are in a world all their own. We ask straightforward questions, such as whether or not Omya has been issued permit amendments for the use of new pesticides, but there are few answers. Omya's wastewater discharge permit has been expired for two years, but apparently that is normal. We have learned that there is no public process for us to participate in the issuance of the new permit, unless it was to come up as part of an Act 250 application.

It is for this reason that ANR permits must not be non-rebuttable. Act 250 is the first and only time that citizens have the opportunity to participate in the discharge permits. A solution to the duplication of process might be to hold concurrent ANR and Act 250 hearings on permits. This would provide citizens with the opportunity to cross-examine the applicant's witnesses and put on our own witnesses.

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VCE's Positions on Proposed Legislation

ACT 250 -- as it is applied -- does not protect Vermont's citizens, environment, or communities. Many of the proposals to change Act 250 are designed to make it easier for big developers to get their permits, not to ensure that our environment and communities are protected. About half of the ideas you are considering will be beneficial, but others will be very damaging to the core element of Act 250, citizen participation. They do not even begin to address the basic problems with the process. VCE stands ready to work with the committees as you move forward to draft a bill.

VCE Opposes
On the record District level hearings will place us at a serious disadvantage. There is no way we will be able to put on our best case given our comparative lack of experience and Omya's decades of experience. Will the Environmental Board read the record?

Empowering Selectboards will create an incentive for graft.

Exempting aesthetic changes -- I happened to drive by McDonald's in Rutland the day after it was painted. I was shocked and offended, and so was my 80 year old companion. We exclaimed at how horrid it was.

Requiring organizations to divulge names -- good way to create a neighborhood hit list. If VCE submits a list of members in Danby to Act 250, that list can and most likely will be used by supporters of Omya to harass and otherwise make life uncomfortable for them. No thank you.

10-member information meeting -- we have "information" about the Omya project. It does not help us prepare for an Act 250 filing, which requires specific details. The time of Vermont citizens has value. This sort of thing wastes time.

Raising the bar for party status -- VCE is a legitimate citizens group, representing the collective interests of abutters, neighbors, and the community directly affected by Omya's proposal, as well as many people who are indirectly affected. Efforts to eliminate the occasional "nuisance" party come dangerously close to destroying the rights of the very interested parties that the law intends to include. Better decision-making on the part of district commissions would address most of the problems being encountered by developers.

Appeal Rights of Materially Assisting Parties -- materially assisting parties often provide the only information the commission sees, except what is supplied by the applicant. One of the biggest difficulties for citizens groups is raising money, and the necessary non-profit status is time-consuming and costly. It is one of the major reasons that citizens need to be able to be represented by "organizations" who might be considered materially assisting parties. Please be very careful that where you draw the line does not eliminate legitimate interests.

Transfer of Ownership -- This creates opportunities to transfer responsibility. It is common practice in cities such as New York to trade properties back and forth to avoid liability.

VCE Supports -- Comments in Bold
Revise Act 250 jurisdiction over subdivisions in three ways:
a) by invoking jurisdiction when a tract is divided by any person or persons into 15 or more lots within any period of five years
b) by repealing the 800-foot road rule that had been adopted by the environmental board; okay, if c) is 3 or more lots
c) by providing that jurisdiction would be triggered when six or more lots are created within a municipality that lacks subdivision and zoning bylaws. Change to 3 or more lots.

The bill proposes to amend the state’s planning goals by making it a goal to identify positive and negative effects of cumulative growth and limit the detrimental effects of that growth.

It proposes to allow the delay of permit issuance to an applicant who is in substantial violation of another permit issued under Act 250.

It proposes to allow appeals from environmental board decisions to be taken to the supreme court by adjoining property owners [yes, but expand to all parties] who have obtained party status.

Except in the case of a minor application, it proposes to prohibit a person who is granted a permit from a district commission from conducting certain construction activities until the 30-day appeal period has run, and in case of an appeal to the environmental board, it prohibits certain activities until the board has issued a final permit

It proposes to revise the definition of "junkyard" to remove the requirement that it be operated in connection with a business. It proposes to require that junkyard operators certify that all toxic fluids have been removed from any vehicle.

The bill requires the executive branch to establish a working group to report back to the general assembly regarding a review of state requirements for the regulation of land development, which review shall address opportunities for improving the consistency in state and federal land development permitting requirements, omitting redundant requirements, and streamlining the process of obtaining permits while assuring appropriate and timely citizen participation. Will there be a citizen on the panel?

It proposes to establish a study committee of the house to study incentives for development of downtowns and village and town centers.

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Annette Smith, Executive Director
Vermonters for a Clean Environment, Inc.
789 Baker Brook Rd.
Danby, Vermont 05739
(802) 446-2094
www.vtce.org
vce@sover.net