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.

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