Friday, January 1, 2010

2010: Looking backward and forward -- training for agency members

The last five posts have looked backward into the past decade to identify acts, after they occurred, for their effect on wetlands law in the state. The actors have been the DEP, the Connecticut Supreme Court and the state legislature. Most people who interact with their local wetlands agency, including most applicants, go no further than to the monthly meeting and appear before the agency. Most of the time the most important actor is the agency itself, not the DEP, the legislature or the courts. It is the agency members and the staff who have the most public visibility. The agency members are the ones at meetings and hearings left with the task of explaining the process and substance of how they process applications and conducting their deliberations in public. The fate of the future of a town's wetlands depends on how well the agency members execute their duties.

You might think this is a monumental task and members appointed engage in elaborate training. Not so. The statutory training requirements are woefully inadequate. The DEP is required to develop a comprehensive training program. Done. The DEP is required by statute to offer the annual training at no cost to one person per town. Done. At least one member of the agency or its staff is required to have completed the comprehensive training. In Swamped: Cities, Towns, the Connecticut DEP and the Conservation of Inland Wetlands, A Special Report of the Connecticut Council on Environmental Quality, October 1, 2008, the Council on Environmental Quality noted that the DEP records indicate during the period of 2000 through 2006 that 37 towns, 22 % of the municipalities in the state, had no member or staff who completed the 3-part DEP annual wetlands training program. Click here to read the report. (Note: Although I have served on the CEQ since appointed in March 2009, I was not a member of the CEQ at the time the report was produced.) Moreover, there is no requirement for "continuing education." If my understanding of the wetlands law remained crystallized with the training I presented in 1990, it would not only be inadequate, in some instances it would be wrong (due to changes in case law and legislation).

Even if every town had a member trained in that seven-year period, who thinks that training of one agency member is sufficient? I've appeared before wetlands agencies with as few as 5 members and with as many as 10 members. Would you feel confident on the highways if 1 out of 5 drivers or 1 out of 10 had licenses? Do you think protecting humans from automotive mishaps shouldn't be compared with protection of wetlands? Well, the legislature declared that the wetlands and watercourses of the state are "an indispensable and irreplaceable but fragile natural resource." It set up an elaborate procedure to examine the effects and protect the resource. To allow decision making to occur with potentially only 1 trained member out of 10 is simply not good government, even if it is legal. Just because D- is a passing grade, we needn't aim so low in fulfilling the duties under the wetlands act.

On this first day of the year I throw out two changes for consideration. Agency members are public officials. Their participation in DEP training should be a matter for public inspection. To that end I recommend that the list of participants in DEP's training be posted on the DEP website on the wetlands page. Too labor intensive for DEP? Let's streamline the work: the sign-in sheets (which already are used at each training session) can be organized alphabetically by town. The sheets with checkmarks next to the names of those who attended can be scanned in and uploaded onto the appropriate DEP webpage. DEP staff wouldn't have to field questions about which towns have members participating, etc. The data would be available for anyone to use. This proposal requires no legislative initiative, just DEP's. DEP would undertake this task prospectively. There would be a one-time submission from each agency at the implementation of this change where the past training of current members be disclosed. DEP would have a baseline of the degree of training possessed by current members. Do I suggest this to embarrass agency members? Not really. I want to know when I am appearing before a commission with a (choose from the following) applicant/CEPA intervenor/person proposing an exempt activity whether the members I'm appearing before have no training/little training/ training/ optimal training. I will adjust my presentation based on the expected understanding of the law or lack thereof.

My second suggestion involves changing expectations and probably statutory requirements of what is sufficient training. I propose that every member should be expected to complete the DEP training within 24 months of appointment with a continuing obligation to complete DEP Segment II, update on case law and legislation, or the CACIWC equivalent (offered at the November annual meeting) every other year. To me that is quite a compromise position. As someone who has been training wetlands commission members since 1990, I personally believe each member should be trained within the first twelve months of appointment and should complete the Segment II update every year. How else could a member feel secure in carrying out his/her duties? But personal and family exigencies arise, the DEP courses are not offered at times when convenient to members, etc. There will be increased costs to send members to DEP training. The wetlands act should be amended to allow the fees assessed for applications to include the cost of training.

This is an area where many interests intersect: agency members who want to get more training (and raise fees to pay for the training), applicants who want to be heard before knowledgeable agencies, environmental intervenors and interest groups who want educated agencies making decisions, municipal officials who want a means to pay for the training and who want more informed agencies making decisions that will survive legal attack.

Common ground exists. May we find a way to implement changes in training this year.

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