Tuesday, August 31, 2010

Buffers vs. Upland Review Areas: predictability or flexibility?

On Monday, the Connecticut Law Tribune published an editorial endorsing a legislative initiative to create a 100 foot mandatory no activity buffer zone from wetlands and watercourse boundaries that will amend the zoning statutes, not the wetlands statutes. The editorial focused on the legislative standstill that has arisen in the past few sessions with predominantly the homebuilders association in counterpoint to the environmentalists who sought such changes in the wetlands law. The proposed legislation was covered in a post earlier this year.

The editorial endorses a one-size-fits-all approach: that a mandatory 100 foot buffer is superior to "weak optional protection" afforded the existing upland review area in the wetlands statute. The editorial is honest enough to acknowledge that when the land contours move away from a wetland or watercourse perhaps a few feet of vegetation is sufficient to protect the wetland resource. Conversely, it acknowledges that in a steeply graded area 100 feet may be inadequate. So, this approach endorses the ease of predictability -- the buffer is 100 feet, regardless of the level of protection needed or afforded, over flexibility. Thus, one landowner, for the greater good of predictability, will leave vegetation intact or allow vegetation to reclaim a cleared area. The "quid" for this "quo" will be mandatory clustering. The landowner will be allowed the same number of units to be developed in a smaller area. The issue seems to have moved away from wetlands protection to a different "greater good," cluster development .

Do you want a paintbrush that covers a broad swath with uniformity and relative speed (no public hearings, garbled conditions or appeals based on lack of substantial evidence)? You will favor a mandatory buffer, even if you can't line up the swath with the protection of the resource.

Do you yearn to see the brush strokes articulate with precision the differences between resources and the creative conditions that can be crafted to find the perfect fit between public comment and a proposed project? Then the flexibility of the current regulatory scheme, which already allows an agency to protect vegetation around wetlands and watercourses will satisfy you.

It is refreshing to read an article where the words "buffer" and "upland review area" are used correctly. In Cornacchia v. Environmental Protection Commission, 109 Conn. App. 346, 357 (2008), the Appellate Court pointed out that the Darien wetlands agency referred to the area within 50 feet of the wetlands and watercourses, as "buffer," "setback area," "protected area," and "regulated area." The Court countered that whatever the commission calls it, the area "is not a protected or regulated area but rather an upland review area where certain activities may be regulated because of the activities' likely impact or effect on the nearby wetlands and watercourses."

I still encounter a tremendous variation in what commission members understand their authority is within the upland review area.
The learning curve is perhaps too slow.

Which brings me back to training of agency members. I will return to the topic of training soon.

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