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.

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