Sunday, December 27, 2009

Countdown to 2010: Five Most Significant Acts in the Past Decade: No. 5 -- issuance of revised Model Municipal Regulations

Our family has been reading the Hartford Courant's ten top stories of the decade, revealed one by one, in the last ten newspapers of 2009. Today each family member sat down and created a top ten list, as we each disputed in some way the choices by the editors of the Hartford Courant. Inspired by the Courant's theme, I offer my choice of the five most significant acts in the area of Connecticut wetlands law. Don't agree? Let me know your choices.

Starting with the fifth most significant act in the decade, I offer DEP's issuance in 2006 of the fourth edition of the Model Municipal Regulations. Think that's insignificant? Think again. After almost a decade since the last revision, the DEP presented (1) in an easy-to-use format revisions that (2) reflect the statutory changes since the 1997 edition and (3) eliminate the erroneous assumptions that are not based in law that crept into the consciousness of many wetlands agency members and even previous issues of the Model Regulations.

The Model Regulations are a great skeleton from which a community can flesh out its municipal concerns with customized upland review areas, procedures or definitions. The Model Regulations are available on the DEP website, accessible from the Wetlands homepage. Click here to view them. Revised or new sections are underlined within the regulations, making it very easy to distinguish changes from previous editions. A key to the revisions in the 2006 edition is provided on pages 2 through 6 preceding the regulations which helps one swiftly determine the topics addressed.

An agency can easily go through the 2006 Model Regulations and determine if any areas of its municipal regulations are in need of revision. This past summer when I was preparing an application before an agency that considers itself fairly sophisticated, I was astonished to discover that the agency had never adopted changes to its municipal regulations regarding wildlife. That means there was no revision to reflect the legislative response in 2004 to the Connecticut Supreme Court's 2003 decision that eliminated the consideration of the effect on wildlife when carrying out duties under the Inland Wetlands and Watercourses Act. Did that agency know of the 2003 court decision? Did it know of the political response the next legislative session? Who knows? But without the current statutory language in the agency's regulations, it is unrealistic to think the agency will just happen to get it right when considering wildlife.

The 2006 Model Regulations eliminate issues that have become "urban legends," for which no one knows the genesis, but about which folks have become adamant. One example, the agricultural exemption applies only to existing farming operations. Try to find that in the statute. The word "existing" has been eliminated from the definition of "essential to the farming operation." In Section 14 the revised regulation clearly sets out the obligation on the agency to have consent of the property-owner before entering onto private property. There are agency members who believe there must be authority for them to enter onto private property. Again, you won't find such authority in the wetlands statute.

The 2006 DEP Model Regulations, in conjunction with the DEP annual legislative advisories, (also available on the DEP wetlands webpage) and its online access, make it easy for agencies to keep up with changes to their regulations. Good regulations are a solid basis from which to make good decisions. Thus, the DEP Model Regulations are my choice for the fifth most significant act of the decade.

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