Is There a 3-Acre Alternative?

Based on my previous legislative update “Paying for Gold, Getting Dirt” in which I identified the absurd costs of the so-called “3-acre rule”, some of you have asked, “What’s the alternative?”  Our House Environment Committee has worked tirelessly and collaboratively to determine the answer to that exact question. 

When the 3-acre rule was established in 2016, it was not known how much it would cost.  It turns out that it’s extremely expensive and very inefficient at remediating the lake.  Because it is retroactive, it feels very arbitrary and punitive to those impacted by it and it’s only responsible for a tiny fraction of the lake clean up. Thus, one might propose the simple answer, as I did, to just repeal the 3-acre rule.

Unfortunately, the situation is complicated by the fact that the EPA now owns the content of a binding agreement with Vermont called the TMDL (Total Maximum Daily Load).  The TMDL was the result of a long legal battle over the poor state of Vermont’s waters that resulted in Act 64, the Clean Water Act, in 2016.  The TMDL is a budget of the total Phosphorus allowed to flow into Lakes Champlain and Memphremagog from all sources.  The target TMDL is a total 34% reduction from the 2016 levels, that is, a total reduction of 213 metric tons of Phosphorus per year (MTP/yr).  It also specifies the sectors in which this lake remediation must occur: agriculture, forests and river banks, and developed lands.  Within the developed lands sector, the TMDL specifies 1.7 MTP/yr are to be remediated by the 3-acre rule (0.8% of the total TMDL).  The bottom line is that since all this detail is specified in the TMDL binding agreement with the EPA, changing it requires approval by the EPA and opens Vermont up to legal challenges that drove the TMDL in the first place, not to mention legal challenges from NY and Canada that also participate in the clean up of these two lakes.

To solve this problem, we isolated the two root cause problems we needed to resolve, namely: 1) the inequity of the economic hardship this rule places on a seemingly arbitrary select few Vermonters, and 2) the inefficiency of this rule which consumes so much resources and accomplishes so little toward the desired end effect of cleaning up of the lakes.

After weeks of extensive testimony and intense collaborative debate, we believe we have constructed a bill that moves us in the right direction. Just under the wire of this past Friday’s “cross-over” deadline, our committee passed a bill to the floor that did three important things to address these two root cause problems. First, it extended the 3-acre rule permitting deadline to 2028 to give more time to accumulate funds in the existing Clean Water fund to help people pay for their 3-acre remediation.  Secondly, it identifies specific minimum dollar amounts and increases priority of other funding mechanisms to be applied to 3-acre rule sites so that affected Vermonters don’t have to bear the entire burden.  Thirdly, it creates a low-cost 18 month feasibility and implementation study to create storm water management utility districts that would accomplish the original intent of the 3-acre rule but in a much broader, more equitable, and much more efficient and less costly manner.

There were some on the Committee that felt we didn’t go far enough.  And I agree.  My going-in position was to repeal the 3-acre rule.  But given the current legal agreement with the federal EPA and new changes occurring within that agency, a deeper study by stormwater legal and technical experts is needed to be able to accomplish it in an improved manner before we can legally proceed any further.

This bill was voted out of committee on Friday and still needs to be voted on the House floor and then reviewed and approved by the Senate.  Changes are still possible.

As a summary, the lesson to be learned here is that we must clearly understand the costs and impacts of what we’re passing into law BEFORE we pass it!  This is a common theme we’re discovering was not well considered across many bills passed in the recent decade.

Please feel free to contact me if you have any further questions about the proposed 3-acre rule changes.

I remain honored to be your Representative,

Rob North

www.NorthForVTHouse.com

Addison, Ferrisburgh, New Haven, Panton, Vergennes, and Waltham.