Friday, April 23, 2010

Natural Vegetation Bill "Killed" for Session States Environment Committee Co-Chair

In an open letter dated April 15, 2010 to "Environment Advocates and Other Interested Persons" Senator Ed Meyer, co-chair of the Environment Committee, announced that the Planning and Development Committee of the General Assembly "killed" the Natural Vegetation Bill, File No. 190 by failing to act on it during its April 14th meeting. In the letter Senator Meyer sets forth procedurally what occurred (or didn't) leading up to the Planning and Development Committee's failure to vote on the bill. I attach the letter to establish that it was not a dispute on the merits that sealed the bill's fate. The internecine battles in the political arena have obscured whether any policy issues were considered.

Is the "killed" bill dead? It's not over until it's over. Resurrection may just be one amendment away.

Thursday, April 22, 2010

My, how the Environment Committee has strayed from the spirit of Earth Day 1970

April 22, 1970. Those were heady days. Throngs of people gathering and clamoring for change. In Connecticut the next legislative session following Earth Day resulted in the passage of the bill creating the department of environmental protection at the same time as the enactment of the Connecticut Environmental Protection Act: establish a state agency to do the job but also create a mechanism for anyone to protect the natural resources from unreasonable impact. This giddy enthusiasm for protecting natural resources continued into the 1970s for inland wetlands and watercourses. It was in the spring of 1972 when the bare bones of the Inland Wetlands and Watercourses Act was overwhelmingly passed.

People were effusive in their support of the original bill -- a bill which did not include a permitting requirement or any other requirement. Attorney Russ Brenneman, special counsel to the newly formed DEP, testified that inland wetlands should be managed and not left to the private sector. He noted that the zoning enabling act was not broad enough. DEP was there to listen: it could not handle the administrative burden of regulating wetlands, so he noted. He thought that DEP would issue a series of protective orders.

The bill looked like this:

· the legislative finding that we all know and which is quoted verbatim by the Connecticut Supreme Court in almost every decision: the act is a matter of balancing the environment with economics
· the (same) title
· the same exemptions, which you love/hate depending on who you are, were written in a confusing way (Aren't the exemptions confusing now, too? Yes, but they were way more ambiguously written, if you can imagine that.)
· a section with definitions, including many which still exist, such as "regulated activity" even though regulated activities weren't "regulated" under the original bill.
· a description of the commissioner of DEP's authority over inland wetlands: supervise the act, develop a comprehensive program, advise, consult and cooperate with other agencies, promulgate regulations to protect wetlands and watercourses, and inventory those resources.
· a list of factors for consideration when the commissioner of DEP goes about creating a regulatory system for wetlands/watercourses
· a policy of encouraging, not requiring, municipal participation in wetlands affairs by acquiring wetlands, regulating them by adopting regulations consistent with DEP's regulations once DEP promulgates them.
· a right to appeal a "regulation, order, decision or action" under the act, with a court assessing damages if a taking of property is proven
· enforcement of violations solely by direct action in court -- no provision for cease and desist orders
· the right to have property revalued for tax purposes if a wetlands license is denied

Public Act 155 in the 1972 session was approved on May 19, 1972. It was pregnant with hope and trust that either through DEP regulations or further legislative action a meaningful regulatory mechanism would emerge to protect wetlands and watercourses.

The wetlands act with its substantive and procedural requirements as we know it today did not exist in 1972. The sine qua non -- no regulated activity shall be conducted without a permit -- had yet to be created. "License" was included as one of the original definitions to mean: "the whole or any part of any permit, certificate approval or similar form of permission which may be required of any person by provisions of this act." The legislature used words that anticipated that regulated activities would be subject to a licensing procedure. But how, who, what, when all remained in the future. The permit requirement emerged in 1973, codified in General Statutes section 22a-42a, since all of the section numbers had already been assigned.

Fast forward to mid-April 2010. Just a few days before the 40th anniversary of Earth Day the Environment Committee voted to endorse a bill voted out of the Commerce Committee, File No. 380, An Act Concerning the State's Regulatory Environment. I won't dispute the merits of expediting the issuance of state permits. But the Environment Committee endorsed a bill that includes a provision of automatic approval of DEP permits that aren't issued within a specified time.

Section 3 of File No. 380 requires DEP to submit to the Environment and Commerce Committees of the legislature by January 1, 2011, a pilot program applicable to a permitting program affecting at least 250 manufacturing or other industrial facilities. The plan that DEP must provide has to:

· impose a time limit for issuing a permit
· provide for default approval for any permit not issued within the time limit unless the permit has been denied "for good cause" or the time limit has been extended
· include standards for "good cause" denial
· list permissible reasons for extending the time limit
· limit the number of extensions which the commissioner may grant.

If this emerged solely from the Commerce Committee, one might reflect that the legislative committee was doing its job, trying to protect commerce in the state, even if imperfectly designed. But this was sent to the Environment Committee which has passed it out of committee earlier this week. Creating this pilot program requires the Commissioner of Environmental Protection to violate the policy of the state set forth in the opening section of Title 22a "Environmental Protection" that the state act as "trustee of the environment for the present and future generations."

My, how the Environment Committee has strayed from the spirit of Earth Day 1970.

Wednesday, April 21, 2010

One More Appendage in the Amended Language of the Natural Vegetation Bill

In my last post I described the merger of the Enhancements to the Inland Wetlands and Watercourses Act, Bill 205, into the Natural Vegetation bill, Bill 123, now File No. 190. I referred to the appendages that the Natural Vegetation bill acquired, but omitted a description of one of those appendages. While awaiting the results of the bill's sojourn to the Planning and Development Committee last week, we'll look at those missing appendage.

Imported into the Natural Vegetation bill is the language originally found in the Enhancements bill:

The inland wetlands agency shall consider all relevant evidence brought before such agency or its agent by any person or entity, including, but not limited to, scientific evidence, expert opinion, direct observations made regarding the proposed regulated activity, environmental reviews, policy letters or guidance documents provided by or on behalf of an environmental review team or by the Department of Environmental Protection and written comments or oral testimony submitted by the Commissioner of Public Health or by or on behalf of a water company in response to written notice provided to such water company pursuant to section 22a-42f.

As I inquired the first time addressing this bill, is there someone out there who thinks that we're breaking new ground by requiring a wetlands agency to consider scientific evidence, expert opinion, and direct observations? Haven't agencies been doing that for 30+ years? I need some guidance, however, on what it means for a wetlands agency to consider "policy letters or guidance documents" by an environmental review team or the DEP. It certainly can't mean to consider the guidance document uniform policy to be implemented across the board -- or else that guidance document would have been adopted as a regulation. What exactly is the lay, volunteer wetlands agency being required to do when it "considers" a guidance document? That's a miasma begging for years of litigation to clarify.

What's odd is that a number of bills were circulated this session restricting or regulating DEP's use of guidance documents that haven't been adopted as regulations -- while the Natural Vegetation bill would "require" wetlands agencies to consider guidance documents. Consider Bill 120, now File No. 228, An Act Authorizing Review of the Department of Environmental Protection's Guidance Statements and Policies by the General Assembly's Regulation Review Committee, and Bill 174, now File No. 385, An Act Concerning the Standards of Water Quality.

It would be an ironic turn of events if the DEP, an agency chock full of experts, can't rely on guidance documents, while lay wetlands agency members are required to consider those documents.

Wednesday, April 14, 2010

Amended Language of the Natural Vegetation Bill, Raised Bill No. 123, is on its Way

On March 30 the amended language of the natural vegetation bill was made available. The amended language does more than make the Environment Committee said they were doing on March 15th when they voted "to make the bill permissive instead of mandatory." Since the bill is working its way to the Senate floor with a stop at the Planning and Development Committee, we'll look further into the amended language. I reported on Raised Bill 123 two posts ago. My conclusion at that time was that the 23 yea votes on the Environment Committee managed to vote out a bill that wouldn't satisfy any interest group that testified or submitted comments: from environmental groups, the Commissioner of DEP, the "exempt communities," and the home construction industry.

Let's see if the amended language changes any of that.

To begin, the natural vegetation bill has emerged from the Environment Committee to the floor of the Senate, with some new appendages and a new title to match. Raised Bill No. 123 morphed into File No. 190, and is now titled: "An Act Concerning the Preservation of Natural Vegetation near Wetlands and Watercourses and Certain Enhancements to the Inland Wetlands and Watercourses Act." The gist of the original natural vegetation bill was to prevent wetlands agencies from approving the removal of "natural vegetation" within 100 feet of wetlands and watercourses unless the agency made certain determinations. The amendment announced by the Environment Committee makes the bill "permissive." That's interesting. The DEP Commissioner and the land use attorneys from Shipman & Goodwin testified that the Wetlands Act already allows wetlands agencies to restrict the removal of natural vegetation on a case-by-case basis. Is this amendment just a feel-good change? Does this actually change the status quo?

Let's turn to the DEP Commissioner Amey Marrella's comments. She said she could support the bill if the prohibition against removal of natural vegetation was made permissive, instead of mandatory. Done. She recommended the removal of the proposed amendments to the farming exemption. The original draft included a reference to the definition of farming set out in General Statutes § 1-1 and deleted "harvesting of crops" as within the farming exemption. The current status of the bill still includes a reference to General Statutes § 1-1 but has allowed the phrase "harvesting of crops" to remain within the farming exemption. Half-done. The third revision Commissioner Marrella recommended was to delete section 3(d) of the original bill. Not done.

Let's look at section 3(d) of the bill. Section 3 is the new provision to be added to the Wetlands Act. In both versions subsection (d) reads:

" The as of right uses specified in section 22a-40 of the general statutes, as amended by this act, shall be permitted in areas of natural vegetation located within the distance around the wetlands or watercourse regulated by the municipality in accordance with subsection (a) of this section."

Let's break that apart. Section 22a-40 sets out the exemptions or the "as of right" uses. Under this bill the exemptions (such as farming, water company, residential use) "shall be permitted" in the wetlands/watercourse or the upland review area in accordance with subsection (a) -- which is the wetlands agency's authority to deny a permit for the destruction of natural vegetation.

Have you followed that? Activities that have been exempt for decades will require a wetlands permit under either version of this bill whenever the activity involves destruction of natural vegetation.

In other words, all of the exemptions have been cut back. If this bill passes, the exempt activities no longer include destruction of natural vegetation. Not for the expansion of crop land (§ 22a-40(a)(1)), not for the uses incidental to the enjoyment and maintenance of residential property (§22a-40(a)(4)), not for the construction and operation by water companies, of dams, reservoirs and other facilities necessary to the impounding, storage or withdrawal of water (§ 22a-40(a)(5)). There were no proponents who testified in support of eliminating the exemptions for removal of natural vegetation. Where did this come from? Did the drafters of this bill intend this outcome? Why was there no discussion about this except for the opposition raised by the "exempt" communities, i.e., the water companies, farmers, and timber harvesters? This is what the Commissioner of DEP opposed. The environmental community, with CFE as its spokesperson, also acknowledged the exemption and proposed no tightening of the exemptions, just a clarification.

Now to the new appendages of the natural vegetation bill. Although the Environment Committee didn't announce it when they voted the natural vegetation bill out of committee, the Enhancements to the Inland Wetlands and Watercourses Act bill was merged with the natural vegetation bill. (This bill was addressed in the February 19th post.) To be more precise, certain enhancements were merged and hence the use of that phrase in the title of the newly emerged bill: "An Act Concerning the Preservation of Natural Vegetation near Wetlands and Watercourses and Certain Enhancements to the Inland Wetlands and Watercourses Act."

The original enhancements bill proposed to revise the legislative finding, the first section of the Wetlands Act. That revision would have included language similar to the legislative finding for tidal wetlands in General Statutes § 22a-28, namely, "it is the public policy of this state to preserve the wetlands and to prevent the despoliation and destruction thereof." In the "certain enhancements" bill, this amendment is omitted. Instead, the language appears only in a section that currently declares that municipalities shall regulate activities within their territorial limits. Section 22a-42(a) would be amended to state that it is the public policy of the state to require municipal regulation and "to preserve and to prevent the despoliation and destruction of such wetlands and watercourses."

This kind of language is useful in a legislative finding. That is the first place the Connecticut Supreme Court looks for evidence of legislative intent. If the bill passes, can one party argue that the 2010 legislature meant no change because it deleted any change from the legislative finding -- while another party will claim that as long as the phrase appears anywhere in the Wetlands Act it is sufficient to show legislative change? And what will the courts do with both approaches in the statute: The need to balance protection of the resource with economic development (from the legislative finding) and the new language which states the public policy is to preserve wetlands and watercourses from destruction?

Well, which is it: balance or protection of the resource from destruction?

The Senate sent the bill over to the Planning and Development Committee for more musings (and amendments?). I thank Attorney Matt Ranelli for answering every question I ever have about the legislative process. Too soon to know if the legislature will act on this bill during this session. We'll check back later in the session.