Attn: Chris Rottler
Department of Environmental Conservation
1 National Life Drive, Davis 3
Montpelier, VT 05620
Re: CWSP Draft RFP Comments
Dear ANR staff:
The Connecticut River Conservancy (CRC) is a nonprofit citizen group established in 1952 to advocate for the protection, restoration, and sustainable use of the Connecticut River and its four-state watershed. In that capacity, we are an active constituent of seven of the fifteen watershed planning basins in the state. We appreciate the opportunity to comment on the draft Request for Proposal, for the Selection of Clean Water Service Providers for Vermont Watershed Basins, Per Act 76 of 2019. Please consider our comments below.
The draft RFP states that the “outcome of this RFP will be the selection of entities that will serve as a CWSP for one or more planning basins in the State of Vermont (see Appendix 1 for a map and list of the 15 basins).” It is somewhat unreasonable to ask entities to submit a proposal in 2020 when funding might not be available until 2023 or later. The Agency needs to provide some clarity in the guidelines and rulemaking about why the CWSP are being set up all over the state and what the differences will be in access to funding in the short term. For example, only the Lake basin areas will have access to formula funding initially. What does this mean for how the other basins will function before they have access to that funding? Will other block grants be provided to develop administrative systems? Will initial funding be available for administrative organization of these other CWSPs?
Additionally, the draft RFP states that the “CWSPs, where active, will also serve to coordinate statutory partner engagement and BWQC engagement in the tactical basin planning process, with support from the State’s basin planning staff.” What defines, “where active?” If CWSPs are set up throughout the entire state, will those that are not funded be required to coordinate and support this work?
If the Agency is only providing funding to CWSP in Lake Champlain and Lake Memphremagog in 2021, the timelines for RFP submission should be split; one earlier deadline for the funded basins, and a much later deadline for the others. Alternately, if there are comprehensive ways that the Agency may be able to support CWSP throughout the state from the outset, that information should be explicit.
The draft states, “Entities that are selected and assigned as a CWSP may, upon mutual agreement of the CWSP and State, serve as a CWSP on an interim basis in any other basin should a vacancy emerge.” If this is to occur, there needs to be some clear bounds on how long this “interim basis” would last and how a new CWSP would be established. This blanket statement also does not address concerns that this CWSP may have no knowledge of what is needed or how partners effectively function in a basin that they are unfamiliar with. CRC suggests striking this sentence from the rule and provide that the Agency of Natural Resources instead function as the interim Service Provider until a new CWSP is appointed.
One overarching concern about the rule-making is the relationship between the CWSPs and the BWQCs. Because the CWSP are also able to implement projects, it is very important that there be some structural check on any potential conflict of interest. If CWSPs have decision making authority on project selection, they may prioritize spending money on their own projects and staff rather than sub-granting funds to other appropriate organizations. Because of this, it is imperative that the BWQC has the decision making authority on project prioritization.
Further, the draft rule indicates, “in collaboration with the BWQC [emphasis added] and with technical and financial support of the State, CWSPs shall be required to identify, prioritize, develop, construct, verify, inspect, operate, and maintain clean water projects…” Alternately, Act 76 expressly states, “The purpose of a basin water quality council is to establish policy and make decisions for [emphasis added] the clean water service provider regarding the most significant water quality impairments that exist in the basin and prioritizing the projects [emphasis added] that will address those impairments based on the basin plan.” Thus, it is not a matter of collaboration, but instead the BWQC has direct decision making authority for prioritizing projects to address the most significant water quality impairments. The role of the CWSP is to administrate the decision of the BWQC. This should be more clearly indicated in the language of the RFP.
The draft RFP indicates that, “Selected entities that agree to be CWSPs will need to comply with the final rules and guidance, as a condition of relevant grants issued under Act 76.” The draft RFP is requesting proposals for a significant role in the state that is not clearly yet defined. This rule-making and the naming of CWSP should not be done until the guidance is fully developed. It is our understanding that the guidance document will detail how CWSPs operate and provide more explicit requirements about the relationship with the BWQC including sub-granting requirements. It is premature to solicit proposals for CWSPs without a full understanding of what those entities are committing to.
Regarding payment considerations, “Program delivery costs, including those costs incurred by subcontractors and subgrantees cannot collectively exceed 15% of the formula grant…” It needs to be clearly articulated in the guidance how this 15% is shared between the CWSP and the sub-grantees. Sub-grantees will not be able to implement projects if there is no support for program delivery available. CWSP must understand that they need to budget some of the total 15% to support the work of implementation done by other parties and a description of how they will do this should be requested in the proposal.
The draft states that “It is expected, but not certain, that there will be a ‘start-up’ grant for assigned CWSPs under this RFP. It is unclear at this time whether start-up funds would also be available to new CWSPs selected in the future.” The assignment of these “start-up funds” should be clarified before the solicitation for proposals. If these funds are made available to some CWSPs, they should be made equally available to all CWSPs in the state.
The draft RFP indicates that “The ongoing service of a CWSP will be subject to periodic reviews, to be established in the forthcoming rulemaking. Consistent with the Agency of Human Services Designated Agency model, it is anticipated that CWSPs selected under this RFP may be eligible to serve until such time as they elect to stop serving, or circumstances require selection of a different CWSP.” This again points out the importance of having the guidance defined before CWSPs are named. The details around periodic review and the expectations of effectiveness of CWSPs should be clearly articulated. CRC would encourage the guidance to include a formal 5 to 7 year review process to confirm that CWSPs are functioning effectively in all of the basins. To further coordinate watershed efforts effectively, it may be logical that this review is done as part of the five year Basin Planning process.
The timeline for “Deadline and Content of Proposals” should also include the proposed timeline for release of the guidance document. This document should be developed and released prior to the required RFP submittal date with enough time for potential CWSPs to integrate this information into their proposal. CRC understands that there is a statutory timeline that is driving this process. The Agency of Natural Resources has missed statutory deadlines in the past. The proper establishment of this program is vital for the economy and ecological health of the entire state. Please take the time needed to promulgate this rule in the most effective manner. We would encourage the Agency to request an extension from the legislature.
Regarding proposal content, the draft RFP requests that the plan include a description of “how the applicant will identify, prioritize, develop, construct, verify, inspect, operate, and maintain clean water projects.” The applicant’s response to the scope of work should address the development of separate functional areas with appropriate responsible parties. For example, the scope should instead describe:
- how the CWSP will develop and support the administrative structure so that the BWQC can prioritize projects;
- how the CWSP will develop a comprehensive granting criteria to judge grant applicants’ ability to identify, develop and construct clean water projects; and
- how the CWSP will inspect, operate, and maintain clean water projects.
The CWSP in their administrative role should not be in the practice of identifying, developing or constructing projects. This work should be going to the sub-grantees for actual project implementation. It is reasonable to allow the CWSP to also be a sub-grantee, but again, as stated above, the BWQC by statute, has the decision making authority to prioritize what projects should be funded and applications from the CWSP should be judged on par with other applications for funding.
It is alarming that the draft RFP allows for relatively easy transfer of authority from on basin to another. One intention of the legislation was to make sure that local knowledge directs clean water work in watershed planning basins according to local need. CRC objects to the indication that, “should there be a need in any given basin, a CWSP from a different basin will be eligible to implement projects in that other basin, as determined by the State” and believes that this undermines one of the strengths of Act 76. As stated above, CRC suggests that the Agency of Natural Resources instead function as the interim Service Provider until a new CWSP is appointed. The CWSP should be overtaken by the agency if they are not functioning effectively, similar to how the EPA currently can usurp state authority if needed.
Thank you for your consideration of these comments. CRC also supports the comments of Watershed United Vermont and the other local watershed organizations. It is imperative that policy development state-wide be responsive to local understanding and expertise.
Kathy Urffer, River Steward
Ron Rhodes, River Steward
South Pomfret, VT
 Draft Request for Proposal, for the Selection of Clean Water Service Providers for Vermont Watershed Basins, Per Act 76 of 2019. Page 2.
 Ibid. Page 1.
 Ibid. Page 2.
 10 V.S.A. § 924 (g)(1). The Vermont Statutes Online. Accessed at: https://legislature.vermont.gov/statutes/section/10/037/00924. January 23, 2020.
 Draft Request for Proposal, for the Selection of Clean Water Service Providers for Vermont Watershed Basins, Per Act 76 of 2019. Page 3.
 Ibid. Page 4.
 Ibid. Page 6.