Friday, December 31, 2010

Looking back on . . . 2006

I was looking around for material to reflect on wetlands topics in the past year and I did find something new (at least to me) on the DEP website that looked back -- way back: 2006 Status and Trends Report. I honestly just saw this yesterday. Perhaps it's been on the website for months, waiting to be clicked upon. The report is dated "December 2009" and uses the 2006 data required to be submitted monthly by municipal wetlands agencies as a basis to evaluate trends.

(The submission of municipal data arises from the statutory section, C.G.S. § 22a-39(m), that instructs DEP to adopt a regulation establishing reporting requirements for municipal wetlands agencies. The regulation, Regulation of Connecticut State Agencies § 22a-39-14, was duly adopted and in effect as of December 29, 1988. The instructions to the form indicate the form is due monthly.)

In 2006 there were 4,380 reported agency actions. Permits issued accounted for 64.3% of the activities, with agent approvals another 24%. Permit denials (120) constituted 2.7%, permit amendments/extensions another 2.7%, jurisdictional rulings (exemptions) (126) 2.9%, map amendments (85) 1.9% and enforcement (85) another 1.9%. Only about 12% of the work of municipal agencies is not spent on permit issuance. Denials, extensions, exemptions and enforcement are distinctly different from issuing a permit. It's those actions which aren't performed often and don't fall into the permit issuance mode that agencies frequently stumble over. Precisely because they have less experience exercising those portions of their regulations. This past year I had occasion to seek an extension of a permit before the wetlands agency of one of our larger cities. The agency and staff professed to having never handled an extension before. I guess we'll have to wait until 2014 to read the 2010 Status and Trends Report to know if the recession resulted in an uptick of extensions.

Residential development as a whole, whether from a homeowner or a developer, accounted for 69% of the applications, with commercial and industrial applications accounting for 11 % ,and state projects less than 1%.

The report includes some raw data. Some old: number of wetlands and watercourses regulated by the law: approximately 510,000 acres. Some new: number of wetlands acres altered (as authorized by permit) - 75; number of wetlands acres created - 129, for a net gain of 54 acres.

DEP commented on three trends that it noted. One, DEP sees a continuing trend of no-net-loss of wetlands since the late 1990s. On page 8 of the report the activities encompassing the net gain of wetlands are described as acres "to be restored, enhanced or created." The trend of no-net-loss of wetlands would be most beneficial if the majority of the 129 acres were for restoring or enhancing existing wetlands. As I understand it, there is some doubt whether creating a wetland is as valuable as protecting an existing one. I guess my opinion on this trend is cautious optimism.

Another trend DEP noted was the increased amount of action shifted away from wetlands agencies over to the approved agent (one who has completed the DEP training.) The authority of agents to act on applications in the upland review area causing minimal impact was established in the 1996 amendments. In a decade agents went from acting on zero applications per year to over 1,000. These are the driveway repair, deck in the upland review area , etc., where the agent can act more swiftly than the agency, allowing the agency to concentrate on the larger applications. This is a win-win scenario.

The last trend I'll comment on is DEP's interpretation that only 1.9% of all actions are enforcement-related, because the wetlands act is administered so well. Here I part ways with DEP. Enforcement, like jurisdictional rulings and denials, constitutes such a tiny portion of agency work that they are just not familiar with the process nor are they comfortable with it on a routine basis. The burden of proof is entirely different from agency experience with permit applications: burden on applicant in a permit proceeding, but burden on the agency in enforcement. Agencies are used to picking apart submissions of applicants, not putting together water-tight cases. Until a majority of agency members goes through the DEP training, I don't think we'll see an appreciable change in enforcement.

Of course, the data in the 2006 report would be even more valuable if they reflected information from all towns. After "special" attention from DEP, written notice and a new submission date, 25 towns -- 15% of all towns -- still did not manage to submit 2006 data by October 9, 2009. Shall we presume those towns did not collect the data? As a public service, I will list the towns, as the DEP did in its 2006 report (although I will use reverse alphabetical order):

Winchester, Westbrook, Watertown, Wallingford, Stratford, Sprague, Shelton, Scotland, Salisbury, Preston, Plainville, North Canaan, North Branford, New Britain, Middlefield, Meriden, Marlborough, Killingworth, Franklin, Brooklyn, Berlin, Beacon Falls, Ashford, Ansonia, Andover.

To leave on a cheerful note, Darcy Winther reports being busy trying to fill 3 positions in the DEP wetlands program. One, vacated by Carl Zimmerman, will now be (re)filled by him, as he has rescinded his resignation. As I hear it, he is responsible for many, if not most, of the improvements to the DEP wetlands homepage. The other two positions are for wetlands enforcement.

May that help us as we right our boat next year through deficit-plagued waters.

Thursday, December 30, 2010

Training: Are we there yet?

I began this year musing whether there should be legislative changes to the training requirements for wetlands agency member -- and concluding there should be. 2010 brought no legislative or policy changes regarding training. But what about the raw numbers of wetlands agency members trained? How did 2010 fare in comparison to the numbers earlier in the decade?

Darcy Winther of the DEP wetlands training program kindly provided me with a graph mapping out the numbers of participants at the 3 different training sessions from 2000 - 2009. She supplied preliminary and approximate numbers for 2010: Segment I - 100; Segment II - 160; Segment III - 130, for an approximate total of 390 participants. (Note: the number of attendees to Segment III is not yet reflected on the graph.) When this year's numbers are finalized, the 11-year graph will be completed and posted them on the DEP wetlands homepage.

Bad news, folks. In 2010 there were fewer attendees at Segments I, II and III than in any other year in the 2000s. Let's recap: Segment I is the beginning curriculum which introduces new staff members and agency members to the legal, administrative and entry natural resource matters; Segment II is the "continuing education" component with annual updates based on legislative changes, court decisions and developing natural resource techniques; Segment III explores one or more areas in depth. Segment I and II are the "workhorse" units that, in my opinion, should be the focus of attention.

(Alas, I have tried unsuccessfully to import the DEP graph. We will have to await DEP's posting it on the DEP wetlands homepage.)

There are reports for two years (2005, 2006) on the DEP website. Those reports present different numbers of attendees than the graph reflects. On the graph, it appears that there were more attendees to Segment I and II in 2010 than in 2005. Yet, the 2005 report indicates that a total of 279 attended training, broken down into Segment I (110) and Segment II (169), while in 2010 the equivalent numbers are 260 (Segment I: 100 and Segment II: 160). In the text of the 2006 report the total number of attendees is listed as 452 for the year, but the graph indicates over 500.

What conclusions can we draw from these data? Are agencies keeping themselves trained on the changes in the law and resource management?

Not if the graph is any indication. With 170 municipal agencies (the town and the borough of Groton, I believe, are responsible for the number being one greater than the number of towns in the state), over the 11-year period, Segment II numbers show less than 1 person/municipality, on average, is receiving the annual updates. Even the statistics for 2004, the highest in the decade, average less than 1.5 persons/municipality for Segment II. That was a critical year, as the Connecticut Supreme Court ruled in October 2003 that wildlife was not within the jurisdiction of the wetlands act and the legislature swiftly enacted a compromise, reversing in part and affirming in part, the court decision, with an effective date of June 2004.

As for those new to the wetlands act, it is hard to draw a conclusion. The majority of members are likely to remain on an agency from year to year. With the exception of 2004, less than one person/municipality received Segment I training. Again, the highest turnout still did not exceed 1.5 persons/municipality. Without knowing the turnover on all wetlands agencies and whether the "new" members had ever served before in the same or another town, it can't be estimated what percentage of new members who should be getting training were, in fact, trained.

What can be ascertained is this: the overwhelming majority of current wetlands agency members are not participating in Segment II training, and thus are not being trained on the changes in the statute and the case law. I must say that this voluntary system of training falls short of guaranteeing that these "indispensable and irreplaceable but fragile natural resource(s)" are being protected by wetlands agency members in the manner set forth by the wetlands act.

So, to answer the question: Are we there yet?

Not by a long shot.