Thursday, March 25, 2010

Legislative proposal to increase protection of natural vegetation around wetlands and watercourses: Raised Bill No. 123

The Environment Committee voted out of committee, March 15th, on a 26 to 3 vote, with 2 members absent, a substitute bill for Raised Bill No. 123, An Act Concerning Preserving Natural Vegetation Near Wetlands and Watercourses. On March 8th the committee held a public hearing on the bill. The legislature proposed language which the environmental groups didn't comment on because they have been busy refining language of their own which they expected to be substituted for the language in Raised Bill No. 123. But many who weren't aware of that commented on the text as found on the General Assembly's website. As a result, reading the written comments to the public hearing is like watching boats passing in the night.

The legislature's version: The bill's focal point is the protection of natural vegetation from "destruction" within 100 feet of a wetlands or watercourse or within the upland review area [URA] where the URA is less than 100 feet. The bill defines natural vegetation as "naturally occurring shrubs, trees or other plants, but does not include lawns or manicured grass areas." Everyone agrees that definition includes invasive species. The bill further states that a wetlands agency shall allow the "removal" of natural vegetation if (1) the applicant demonstrates the removal not likely to impact or affect the physical characteristics of the wetlands or watercourse and (2) there is no feasible or prudent alternative to the removal. Evidently, one would have to make that showing to remove invasive species.

The exemption to this "natural vegetation" provision is for activities that are "ancillary to existing residential uses" such as "the construction of structures such as decks, outbuildings, fences or walkways."

However, the activities set forth "as of right," otherwise known as the exemptions under the wetlands act, are not exempt from this natural vegetation provision. Thus, farming activities and water company activities, exempt under General Statutes § 22a-40, must comply with the permitting process for the destruction of natural vegetation. This bill also tinkers with the farming exemption, in general, by including a reference to the statutory definition of farming contained in General Statutes § 1-1, but omitting the reference in the farming exemption to "harvesting of crops." No one addressed the reason or need for eliminating "harvesting of crops" from exempt activities. Is there one?

The environmental groups' version: This proposed language is appended to CFE's comments and is joined in by the Sierra Club, The Nature Conservancy, the Connecticut River Watershed Council and Rivers Alliance. The groups' version uses the same definition of "natural vegetation." As CFE explains, the groups' version " directs local inland wetland agencies to preserve vegetation on any unimproved lot in the first 100 feet around wetlands and watercourses unless the applicant can demonstrate that there would be no adverse impact to the wetland or watercourse." For improved lots the groups' version gives discretion to preserve/replant natural vegetation in the first 100 feet "to the extent practical."

Unlike the text of the Raised Bill, the groups' version continues in effect the existing statutory exemptions and affords those same activities to be exempt from the natural vegetation provision. Also, it strengthens the statutory exemptions. The groups' version inserts language explicitly extending the exemption to those activities that occur in the upland review area ("area around wetlands and watercourses").

The groups' version also includes a provision that the agency may charge a fee to cover the costs of the agency hiring experts. It spells out a mechanism for the agency to issue an estimate to the applicant. If any of the estimate remains unused, it is returned to the applicant. This language tracks the DEP language in the 2006 version of the Model Regulations. By providing the language in the statute, the environmental groups were intending to bypass the need for individual agencies to adopt such a regulation.

CFE's comments identify that the purpose of this bill is in "furthering the protection of Connecticut's water quality and mitigating the harms of flooding and erosion." The DEP Commissioner, Amey Marrella, testified that the law as currently written authorizes agencies to exercise their discretion on a case-by-case basis as circumstances dictate. DEP does not support a mandate that narrows the authority to allow removal of vegetation. DEP also opposes the erosion of the statutory exemptions, by requiring exempt activities to nonetheless comply with the mandate regarding removal of vegetation. DEP would support the bill if it eliminates the changes to the exemptions and the mandatory language be made permissive.

While the DEP commissioner testified that agencies already have the authority to regulate the removal of vegetation, in contrast the Connecticut Council of Municipalities testified that the bill would expand the jurisdiction of agencies without evidence of the need to do so. The Connecticut Marine Trades Association characterized the bill as granting "excessive authority" to wetlands agencies. The Home Builders Association of Connecticut believe the bill "unnecessarily expands the jurisdiction" of wetlands agencies.

The land use attorneys from Shipman and Goodwin submitted testimony supporting the Commissioner's proposition that wetlands agencies already are authorized to regulate the removal of vegetation. With a little bit of high school math and some practical knowledge they point out that a wetland the size of a pin generates 3/4 acre of area which would be under the mandate of no removal of vegetation unless the specified conditions are met. Do the math: area of a circle = pr2 (3.14 x 100 x 100 = 31,400 [1 acre = 43,560 square feet] or 72% of an acre.)

The legislature's Raised Bill threatens the exempt community's status and brought out strong opposition from the Connecticut Water Works Association, the Connecticut Professional Timber Producers Association, an entrepreneur in the forest product industry and the Connecticut Farm Bureau Association.

CACIWC (the CT Assn of Conservation and Inland Wetlands Commissions) wrote in support of the concept of protection of vegetated buffers but because there were different versions circulating among various stakeholders recommended that an advisory committee representing the varying interest groups review any language before the bill goes further.

What the Environment Committee did: The committee voted out of committee an amendment which makes the bill permissive instead of mandatory. By their action the legislators displeased: (1) the environmental groups who supported a different version of the bill, (2) those business interests opposing the bill, (3) the groups whose activities are covered by the statutory exemption but not in this bill, (4) CACIWC which wished an inclusive process and (5) the Commissioner of DEP who set out the three conditions under which she could support it.

Did the Environment Committee manage to alienate everyone at once? Astonishing. Perhaps this bill will go the way of many other bills during a short legislative session.

May it wither on the vine.

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