Monday, May 31, 2010

Training of wetlands agency members: Unfinished Business, Part II

Maybe some of you don't see the need for me blathering on about wetlands training. If a majority of members of every wetlands agency had completed the DEP comprehensive training and a majority of members of every wetlands agency regularly attended Segment II of the DEP training or the case law and legislative review offered at the CACIWC annual meeting, training could be a non-issue. Training is still an issue for a couple of reasons.

The Council on Environmental Quality produced a special report Swamped: Cities, Towns, the Connecticut DEP and the Conservation of Inland Wetlands, in 2008. During the period of 2000 through 2006 thirty-seven towns had no member who completed the annual comprehensive DEP training. The CEQ report notes a correlation between higher training and higher protection afforded wetlands (fewer acres of wetlands impact allowed).

Recently The Connecticut Mirror featured a special article by Matthew L. Brown which highlighted the unresolved problem of lack of wetlands agency training. Brown contacted an official in one of the towns noted in the 2008 CEQ report as not having any trained members. Brown spoke to Richard Matters, the First Selectman in Franklin, inquiring about the current status of trained members. Mr. Matters believes the town is still be on the list for no trained members. He cited the difficulty to get people to serve, although Brown noted there are no vacancies on the wetlands agency.

Those are the reasons that training is still an issue.

Is there anyone who thinks agencies which fail over a significant period of time to meet the training requirement -- one trained member -- are qualified to administer the wetlands act?

Is there anyone out there who would like to go before an agency with no trained members?

I invite you to send suggestions to improve the statistics on training, whether they involve amending the wetlands act or changing the means of training. I am happy to continue to receive comments directly to me at my e-mail address ( Thanks to all of you who send me comments, and thanks to Attorney Matt Berger of New London who pointed me in the direction of The Connecticut Mirror article. However, I also invite anyone to submit comments on the blog. (At the end of each entry is a notation of "0 comments." If you click on comments, you are able to send your comment.)

I will use any comments I receive to open a dialogue and seek further comments. I am happy to float your ideas without attribution, if you prefer anonymity. The CEQ has noted its intention of proposing legislative language for the 2011 session. As a member of CEQ, I would like to have a sense of the possible "carrots" and "sticks" to be employed.

In the next entry I will start with some of my suggestions, some benign, some severe. And thank you for the comment I have already received wondering why the DEP training DVD isn't on its website. I will ask DEP and report back.

Training of wetlands agency members: Unfinished business, part I

There were two attempts to revise legislative bills affecting the wetlands law to address training of wetlands agency members. Because each of the underlying bills did not progress, neither did either attempt to address training. This issue is not going away. Expect to see legislative proposals next session. So, we'll review what was proposed in 2010.

I reported on efforts to protect natural vegetation near wetlands and watercourses over the course of the legislative session. Click here and here to read those entries. The Connecticut Fund for the Environment (CFE) proposed alternate language which a number of environmental groups endorsed in lieu of the legislative proposal. As part of that proposal the environmental groups proposed a simple addition to § 22a-42a(e), the statutory provision that allows agencies to impose a filing fee. As currently written, the law states:

The amount of such fee shall be sufficient to cover the reasonable cost of the reviewing and acting on applications and petitions, including, but not limited to, the costs of certified mailings, publications of notices and decisions and monitoring compliance with permit conditions or agency orders.

After the phrase "publications of notices and decision" the environmental groups endorsed adding "training of inland wetland agency members." I was a pretty strong vocal proponent of this amendment (instigator?) on the conference calls amongst the environmental groups supporting this bill. Many agencies say they don't have the funding to support training. DEP by law must allow one agency member to be trained at no cost per year. For those agencies with a lot of turnover or a lot of untrained members or members who wish to keep up with the case law and legislative changes, the costs of training can add up. Not a good time to be asking for a larger part of the municipal budget. This proposal was an attempt to generate an income stream for training from the those who would benefit greatly by trained members, the applicant pool.

The second proposal came from the Council on Environmental Quality when it commented on the bill concerning Enhancements to the Inland Wetlands and Watercourses Act. (I am an appointed member of the CEQ and supported the board's decision.) The CEQ comment proposed a sentence at the end of § 22a-42a(d), the statutory provision setting out the requirement that there must be one member of the agency or its staff who has completed the DEP comprehensive training. The CEQ proposed language:

On and after January 1, 2012, each agency shall state on the record, at the commencement of each hearing or meeting at which the agency will be considering one or more applications, petitions or requests, the number of members and staff that have received a certificate for completing the comprehensive training program issued pursuant to Section 22a-39(n).

Then, as the legislature would have it, those two bills were merged into "An Act Concerning the Preservation of Natural Vegetation near Wetlands and Watercourses and Certain Enhancements to the Inland Wetlands and Watercourses Act." Of this I'm certain: neither proposal regarding training made it into that merged bill. No matter -- the bill didn't go anywhere.

The CEQ has discussed the issue of a stand-alone bill on wetlands training for the next legislative session.

Conclusion at end of 2010 session: no new approach to training -- unfinished business.

Friday, May 21, 2010

The Council on Environmental Quality issued its 2010 annual report, Environmental Quality in Connecticut. The report evaluates the state of the environment, reflecting on a variety of indicators. This is the second year that the annual report is paperless and available online. The conclusion for the Inland Wetlands Page is stark:

Cities and towns have permitted destruction of fewer wetland acres most years since 2000. However, that trend reversed in 2008.

The report notes in word and by bar graph that the number of wetlands acres disturbed in the state has dropped significantly from the early 1990s (between 450-475 acres/year) to 2006-2007 (less than 100 acres/year). Starting in 2008 and continuing in 2009 slightly more than 100 acres were disturbed in the state, with 2009 exceeding 2008. The increased disturbance coincides with the economic downtown which seems more responsible for fewer applications being filed around the state.

The report also tracks the number of wetlands acres created -- while noting it does not evaluate the success of the wetlands created. That bar graph looks more like a roller coaster: a small spike in 1991 of over 100 acres created, retreating for most of the 1990s to less than 100 acres created, with 2000, 2004 and 2008 showing significant spikes to close to 200. In 2009 the number of wetlands acres created dropped to below 100.

The report determined that wetlands agencies have been approving less disturbance per wetlands application, approximately 0.02 acres per permit since 2004.

The report continues to point out that many wetlands agencies fail to comply with the only training requirement in the wetlands statute: one trained agency member or staff. There is a link to CEQ's special report issued in October 2008 Swamped, that documented 37 non-complying wetlands agencies. This is unfinished business. I will return to this topic in future posts.

As an appointed member to the Council on Environmental Quality, I know the quality of the annual report is a direct reflection of the terrific work of the executive director, Karl Wagener, and CEQ staff, Peter Hearn. Thanks, Karl and Peter.

Thursday, May 20, 2010

The Consequence of Good Government

Today I daylight the promulgation of a longstanding "policy" of the Stamford wetlands agency, the Environmental Protection Board, into regulation as of April 6, 2010. According to Dave Emerson, the longstanding staff person to the EPB, the board has had a longstanding "informal policy" of "no net loss" policy for wetlands and watercourses. Just to review, the Inland Wetlands and Watercourses Act does not establish a policy of "no net loss" of wetlands and watercourses. It sets forth a process to be implemented at the municipal level, a process of balancing natural resource considerations with use of property. Each municipal agency, if it follows the law (the statutes and the case law precedent), can draw that line where it wishes.

Earlier this year I reported on a legislative proposal that was an attempt to circumscribe the use of policy or guidance statements that have been relied on by regulators as regulations, without having been adopted as regulations. In the wetlands context I reflected on how the Connecticut Stormwater Quality Manual and the 2002 Connecticut Guidelines for Soil Erosion and Sediment Control are too frequently referred to as "standards" by municipal wetlands agencies.

The EPB, according to Dave Emerson, was influenced by that post to cogitate on its "longstanding informal policy" of no net loss. Through regulatory action, and approved by the Stamford Board of Representatives, the EPB has added subsection (c) to Section 1.3 to its regulations, the "no net loss" policy, as follows:

In the furtherance of the foregoing goals the Environmental Protection Board hereby adopts a “no net loss policy for all wetlands and watercourses.” In furtherance of the no net loss policy, the EPB may require wetland mitigation that may include Avoidance by evaluating alternative development designs and sites; Minimization by implementing special design features and construction practices so that impacts to wetlands can be minimized; and Compensation by offsetting remaining wetland losses through measures to, in the following order of priority, enhance and create productive wetland or watercourse resources either onsite or offsite.

Now, everyone is on equal footing. You don't have to be the longstanding staff person to the board, or a longstanding member of the board, or a longstanding local watchdog. You can file an application for the first time or pick up the regulations tomorrow and realize everyone is going to be addressing no net loss when the application comes up. Exactly the reason that important policies that are used uniformly need to be adopted as regulations.

As the mother of two teenagers I am called upon (too often) to comment on acts (foolish, thoughtless or worse) and their consequences (pouting, punishment, and general family agita). It's the "act/consequences" discussion. So, I am happy to congratulate the Stamford Environmental Protection Board on turning its thoughts into action. An action which serves applicants, concerned citizens and every person appearing for the first time before the Stamford wetlands agency.