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.

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