Wednesday, August 10, 2011

State Supreme Court to Farming Community: Roads constructed with fill in wetlands not exempt from wetlands permit

In a unanimous decision (6-0) the state Supreme Court ruled in Taylor v. Conservation Commission, that roads constructed with fill in wetlands are not exempt from the state wetlands law and a wetlands permit is required. The Supreme Court believed it was addressing only those roads the construction of which required fill. The word "construct" means, according to the Random House Webster's College Dictionary, "to build or form by putting together parts." Those parts would constitute some kind of material, which in turn, would mean, that the construction of all roads involves "fill" of some sort. I'm hard-pressed to fathom what is left of the exemption for road construction directly related to the farming operation.

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Full disclosure: I represented the plaintiff, Jim Taylor, in his appeal to the Superior Court. I represented the Connecticut Farm Bureau Association, Inc., amicus curiae, in the Supreme Court appeal.

Fuller disclosure: In the 1980s I was a member of the board of directors of the Connecticut chapter of NOFA - the Northeast Organic Farming Association.

Fullest disclosure: My maternal grandmother was one of 10 children growing up on a farm in southwestern Germany where she spent many childhood hours working in the fields and cherry orchards. My great-grandmother fell from a piece of equipment and died in a farming accident. My father's relatives left farm fields in Southern Italy for the United States in the 1910s. In the Great Depression my father's immediate family, destitute and unable to survive in their row house in South Philly, moved in with his extended family in a 3-story multigenerational house directly across the street from the steel mills in Duquesne (Pittsburgh) where the family members, including children, who were not employed in the steel mills worked in the most amazing garden terraced into a 3-story high steep hill adjacent to their house which fed everyone in the family. From those years my father learned that farming meant family, food and freedom. I was the one to place seed packets in his casket in 1992.
* * *

To those of you who have not had to think much about the farming exemption or any exemption under the wetlands law, you might wonder what's the big deal with concluding that construction of farm roads involving fill requires a wetlands permit. After all, construction involving fill requires a wetlands permit. Regulated activities, the ones which require a permit, exclude the activities in the statutory exemption. Exempt activities, by definition do not require a permit. So, determining whether an activity is exempt is a big deal.

The statutory language for the farming exemption in Conn. Gen. Stat. § 22a-40 (a) (1) is not for the faint of heart. The first sentence is very straightforward: a number of activities of listed. Farming is one of them. Thus, farming is exempt. But then you start to wonder, what about the farm road to get the equipment to the fields or the harvest out of the fields to the market? Is that road included?

So, you proceed to the second sentence:

"The provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow . . ."

The second sentence tells you what's not in the exemption, in other words, what needs a permit -- read through the first double negative . . . are you still with me?

Here is where the friction arises:"road construction directly related to the farming operation" vs. "filling of wetlands."

The Supreme Court resolves that tension with this one-sentence conclusion:

"We conclude that, even if road construction directly related to the farming operation is permitted as of right, such road construction is not permitted as of right if it involves the filling of wetlands, because the filling of wetlands is not permitted as of right."

With the "even if" phrase, the Supreme Court informs us it hasn't decided that the road construction is permitted as of right. The Supreme Court focused on the "filling of wetlands" exclusion to the exemption. That is clear. The Supreme Court states: "It [the statutory exemption re-filling of wetlands] plainly and unambiguously does not permit the filling of wetlands as of right." Ok.

But what is left of the "road construction exemption? Hard to know. The Supreme Court stated in the text of the decision (quoted above) that it hasn't decided whether there is a road construction exemption. If you missed that in the decision, you can reread it in footnote 10: "We emphasize that, because we conclude that filling in wetlands is not permitted as of right, we do not address the questions of whether road construction directly related to the farming operation is permitted as of right . . ."

The Supreme Court notes the wetlands staff memo mentions that floodplain soils can be sturdy enough to drive on. The genesis of this position is from Steve Tessitore, former DEP employee in the wetlands program. Such use of land isn't the same as road construction. In that case, no road construction is necessary. But what about when road construction is necessary?

Back to the definition, how do you build a road without putting together parts . . . composed of materials . . . which constitute fill? The Supreme Court, in footnote 8, holds the plaintiff responsible:

"(B)ecause the plaintiff has not demonstrated that all road construction on wetlands requires the use of fill, the plaintiff has not demonstrated that our interpretation of the statute renders the subject clause meaningless."

Now do you understand what kind of farm road can be constructed without fill and satisfy the exemption . . . if the exemption even exists?

I shared my initial thoughts with a number of consultants who have worked on the farming exemption. Some preliminary responses with twists of my own: If no road was needed to be constructed because the soil supported the weight of farm vehicles, but over time the area becomes rutted, is a permit needed to fill those ruts? Is the answer different if a farm road was built according to a permit and the road gets rutted? Another: Will we return to a time when tractors get stuck in wetlands because getting a permit for a road will be too difficult?

Whenever I write about the farming exemption I end up with the same thought: don't the wetlands agency members and those seeking to farm deserve a straightforward statute that spells out what is exempt and what is not?

Thursday, June 30, 2011

Public Act 11-184: New exemption, of a sort: dry hydrants for firefighting

At the beginning of the legislative session I reported on the effort to streamline consideration under the wetlands act, of the installation of a dry hydrant for firefighting purposes. The bill as originally drafted would have infused into the statute a novel concept, as least for the wetlands act, of a "rebuttable presumption." That original language would have created a presumption that an application for a permit for the installation of a dry hydrant, for any purpose, be granted. That presumption could be rebutted upon the demonstration "that there is a feasible and prudent alternative access to a public water supply that has a less adverse impact on wetlands and watercourses. "

That language would have created a new path for undertaking a activity affecting wetlands or watercourses : 1) upon the granting of a permit where the applicant has the burden of proving it is entitled to the permit; 2) upon the agency determination that the activity is exempt from the act; and per the original draft language, 3) for dry hydrants upon the filing of an application where the applicant has no burden of proof and the agency with the burden of proof, does not rebut the application with evidence that there is a feasible and prudent alternative, a public water supply, with less impact to the wetland or watercourse.

I'm glad that the concept of a "rebuttable presumption" disappeared as the bill wended its way through the legislature. Although retaining the concept in its caption; AN ACT CREATING A REBUTTABLE PRESUMPTION FOR THE APPROVAL OF AN INLAND WETLANDS PERMIT FOR A DRY HYDRANT; Public Act 11-184 has moved on from that concept and today was delivered to the Secretary of the State. It will, presumably, be signed by the governor shortly. Once signed, the public act will go into effect October 1, 2011.

The exemption for the dry hydrant is broken into two activities, each of which is handled in separate portions of the exemption statute. The "withdrawals of water for fire emergency purposes" becomes exemption #7 in General Statutes § 22a-40 (a), which starts with the farming exemption as #1. So, before the water can be withdrawn the fire department will need to put in writing its plan to withdraw water for firefighting purposes. That seems like a straightforward determination for the wetlands agency to rule on: either the fire department is withdrawing water for fire emergency purposes and is exempt, or it is not for fire emergency purposes and the fire department needs to apply for a purpose. An agency doesn't consider the impact of the activity on the wetland or watercourse, if it is listed in subsection (a) of § 22a-40.

But the preliminary activity, installing the dry hydrant was inserted into subsection (b) of § 22a-40, where an environmental determination must be made. The subsection (b) exemptions "shall be permitted, as nonregulated uses in wetlands or watercourses provided they do not disturb the natural and indigenous character of the wetland or watercourse by removal or deposition of material, alteration or obstruction of water flow or pollution of the wetland or watercourse." The fire department will bear the burden of proof that the installation of the dry hydrant (1) does not disturb the natural and indigenous character of the watercourse by (2) removal or deposition of material, (3) alteration or obstruction of water flow, or (4) pollution of the watercourse. That is standard for any of the (b) exemptions. In addition, the installation of the dry hydrant will have to meet the additional requirements spelled out in the new (7):

The installation of a dry hydrant by or under the authority of a municipal fire department, provided such dry hydrant is only used for firefighting purposes and there is no alternative access to a public water supply. For purposes of this section, "dry hydrant" means a non-pressurized pipe system that: (A) Is readily accessible to fire department apparatus from a proximate public road, (B) provides for the withdrawal of water by suction to such fire department apparatus, and (C) is permanently installed into an existing lake, pond or stream that is a dependable source of water.

As Jonathan Schwartz commented after my previous post on this bill, the Burlington wetlands agency of which he is a long-term member hadn't denied any permit to the fire department; it just required the submission of necessary information. His concern that the original bill strips the agency's authority to protect wetlands and watercourses was addressed, even if unintentionally by the legislature, by putting the exemption into subsection (b) of § 22a-40, instead of § 22a-40 (a). Rather than exempt the installation of the dry hydrant regardless of the installation's effect on the wetlands and watercourses (which is the case for the exemptions listed in § 22a-40 (a), the wetlands agency will retain authority to examine the environmental impact. For the fire department to qualify for the exemption for the installation of the dry hydrant, it will have to supply information to establish it won't disturb the natural and indigenous character as well as the other specific elements of the exemption set forth in (7).

Public Act 11-184 clearly spells out the information that a fire department will need to provide in its request for determination of exemption and sets the scope of the agency's review.

Thursday, June 9, 2011

Into the DEEP

On Tuesday, legislation passed both chambers of the General Assembly creating a successor agency to DEP. (Senate Amendment A is apparently part of the final bill as well.) Effective July 1, 2011 (I hesitate as I write the effective date, see previous post), the new agency, the Department of Energy and Environmental Protection, DEEP, will come into existence. The commissioner of DEP will become the commissioner of DEEP. The statutory duties of the former will become the duties of the latter, although the latter will take on additional duties in the realm of energy policy. For a thorough description of the new DEEP, click here for OLR's analysis of the bill. (Warning: do not hit the "print" button unless your printer is full of paper.) As far as the administration of the Inland Wetlands & Watercourses Act, I perceived this change as no change and, thus, not particularly newsworthy in this blog.

One of my faithful readers begged to differ. After receiving no response from me to his e-mail, he called me to pursue the issue. I articulated my premise that for our wetlands purposes, this is just the status quo.

The new legislation, for instance, in section 1, defines the goals of the environmental side of DEEP as follows:

For the purpose of environmental protection and regulation, the department shall have the following goals: (A) Conserving, improving and protecting the natural resources and environment of the state, and (B) preserving the natural environment while fostering sustainable development.

The phrase "conserving, improving and protecting the natural resources and environment of the state" in (A) should sound familiar. Compare the language establishing the State Policy at the beginning of the environmental protection statutes, in General Statutes § 22a-1:

Therefore the General Assembly hereby declares that the policy of the state of Connecticut is to conserve, improve and protect its natural resources and environment . . .

I don't want to overthink this and read too much into small word changes, but the establishment of the DEP in 1971 spoke of DEP's jurisdiction, in General Statutes § 22a-2(a):

over all matters relating to the preservation and protection of the air, water and other natural resources of the state.

Section (B) in the new duties seems less to come from the DEP duties but to be an updating, of sorts, of the last phrase of the State Policy, in General Statutes § 22a-1:

to manage the basic resources of air, land and water to the end that the state may fulfill its responsibility as trustee of the environment for the present and future generations.

I, myself, like the timelessness of the concept of trustee of the environment while actively managing the resources. "Sustainable development" is so trendy and hip. I'm not ready to state that the absorbed DEP will have a different perspective in the new DEEP.

However, I am already rethinking my premise that the status quo is preserved.

Who wouldn't after the Haddam land swap was approved last night?

For those of you spending too much time following Representative Weiner's sextings or the televised oral argument in the 11th Circuit Court of Appeals on the constitutionality of the federal health care plan, as the case may be, here's a thumbnail sketch of the Haddam land swap. In 2003 the DEP purchased 17 acres of property in Haddam with picturesque views of the Connecticut River, the swing bridge and the Goodspeed Opera House with $1.3 million dollars under a state conservation program to preserve open space. Senator Eileen Dailey tried last year and renewed her efforts this year to give these 17 acres to Riverhouse Properties which owns a banquet center and would like to build a hotel and retail complex on those acres, in exchange for 87 acres adjacent to Cockaponset State Forest, purchased by Riverhouse Properties in 2009 for $450,000.

Former DEP Commissioner Amey Marella opposed the land swap, as did former Governor Rell. The co-chairs of the Environment Committee asked Commissioner Dan Esty to advise them of the DEP's position on the swap of this land. The commissioner offered no response.

To any thinking person, it is a no-brainer that the DEP should weigh in on the swap of land that DEP acquired recently with funds from a state conservation program to acquire open space for public use. In these waning days of the DEP the ink on the page directing DEP to "preserve and protect" seems to have already faded. Is the bar so low to defining sustainable development that any business activity will suffice? The governor still has the opportunity to put on his thinking cap and examine this issue. I hope he does.

I retract my earlier statement that this new bill is an expression of the status quo for the Inland Wetlands & Watercourses Act or anything else under DEP's jurisdiction. It's too soon to say.

Tuesday, June 7, 2011

Public Act 11-5 lengthening existing wetlands permits in effect as of May 9th

Time will tell, indeed. I last wrote, wondering whether the Public Act 11-5 which I hypothesized would go into effect October 1st would cause a mini-spike in wetlands agency work. To recap, that public act extends the life of wetlands permits to 9 years, with a possible extension of up to a total of 14 years. The automatic increase in length of the permit applies to all wetlands permits (and a variety of other specified land use permits/approvals) which haven't expired on the effective date of the public act and were issued prior to July 1, 2011.

I didn't note the 2-prong conditions which determine if a wetlands permit qualifies for the automatically lengthening. I overlooked the parenthetical phrase, "(Effective from passage)," within the first sentence of section 4, the section of the bill addressing the wetlands act, as well as the phrase applying this to permits issued prior to July 1st. The Public Act became law with the governor's signature on May 9, 2011.

Did I have a moment of insight to catch my reading oversight? Not at all. DEP wetlands staff Darcy Winther, in the most deferential way possible, wrote me a personal e-mail wondering if I might clarify my previous post given the inclusion of the phrase, "effective upon passage." Clarify? Civility is alive and well and living in the corridors of DEP (or do I mean DEEP? Not yet in effect?)

I'm sure this was going to be a headache for Darcy to have to straighten out in DEP training, so I will clarify, ahem, correct my previous post. To qualify for the automatically longer permit term, one of the following conditions must be satisfied:

(1) there is already a permit in effect which has not yet expired as of May 9, 2011
(2) if there is no permit as of May 9th, a permit is issued prior to July 1, 2011.

Wetlands permits issued from July 1st forward will revert to the 2 - 5 year permit length, with a possible renewal for 5 years. The mini-spike of wetlands agency work that I wondered about in the previous post will end on June 30. I suspect few projects will be able to rush in for a permit, unless they did so last month.

To err is human; to be politely and discreetly informed of one's shortcomings is divine. Thank you, Darcy.

Tuesday, May 31, 2011

The bill to extend the length of wetlands permits is expanded and becomes law

We last looked at Raised Bill 859, An Act Extending the Time of Expiration of Certain Land Use Permits, in March after the Planning & Development Committee of the legislature unanimously passed it out of committee. Its scope continued to expand until it became Public Act 11-5 and was signed by the Governor Malloy on May 9th. The Public Act extends the minimum life of a variety of land use permits in virtually identical ways. We'll just focus on wetlands permits.

The bill originally proposed to lengthen to nine years those wetlands permits issued between July 1, 2006 and July 1, 2011. The Home Builders Association of Connecticut asked that all permits permanently be extended to nine years. I guess even Bill Ethier (of the Home Builders) thought that was a little extreme and alternatively recommended that the period of time for which period are automatically extended reach back to July 1, 2004 and forward to July 1, 2013.

But the Senate took the idea of enlarging the extension and ran with it. The Senate amended the bill by applying the new statutory minimum "to any permit issued under this section [CGS 22a-42a] prior to July 1, 2011, that has not expired prior to the effective date of this section." With no stated effective date in the public act itself, the effective date will be October 1, 2011.

Every permit in effect on October 1, 2011 "shall expire not less than nine years after the date of such approval." The length of a permit issued after October 1, 2011 would be determined by the application of CGS § 22a-42a(d(2)): between two and five years.

This does not mean that permits get this benefit after the municipal agency reviews the permit and recalculates the expiration date. This is by legislative fiat. Whether the permit was originally valid for 2 years or 5 years, or any time in between, any permit in effect on October 1, 2011 will have a length of nine years. Such permit, if renewed by the agency may be valid for up to fourteen years. For a permit issued on September 30, 2011 the permit, with the maximum renewal, would expire on September 30, 2025. This would seem to emphasize the importance of the agency's review of changed circumstances at the time of renewal -- since almost a decade would have gone by.

This Public Act seems to embody the Governor's mantra that the State of Connecticut is open for business, while reducing the business of the wetlands agency in determining the length of permits. But will this cause a mini-spike of business before wetlands agencies by applicants wanting applications acted on by the end of September? Time will tell.

Tuesday, March 15, 2011

Legislative proposals to extend length of wetlands permits and length of time to complete regulated activities

In keeping with Governor Malloy’s message that Connecticut is open for business, the Planning & Development Committee of the General Assembly on March 11th voted unanimously in favor of two legislative proposals that would lengthen the time within which approved regulated activities could be conducted. Raised Bill 859 extends the time for which certain wetlands permits (also site plan and subdivision approvals) are valid. Raised Bill 869 establishes a minimum of three years that a permit shall allow regulated activities to occur. This would eliminate the discretion that agencies currently have to limit permits to two years.

Raised Bill 859 proposes to amend a provision originally added to address the initial blows the recession wreaked on our construction industry. Permits may have a life of between 2 and 5 years, depending in part on the discretion of the municipal agency and in part on whether certain zoning approvals are also required. Section 22a-42a (g) was first enacted by the legislature in 2009. It allowed for the automatically lengthening of all wetlands permits issued between July 1, 2006 to July 1, 2009 to six years, with a maximum of 11 years, if a renewal is granted. Bill 859 enlarges the permits eligible for automatic lengthening -- those issued between July 1, 2006 through July 1, 2011. All of those permits are valid for 9 years from date of issue, and up to 14 years with a permit renewal. So, permits issued in June 2011 will be valid until 2020 and up to 2025 if permit renewal is sought (and granted.)

The sole written comment to this bill was The Home Builders Association of Connecticut which strongly endorses the bill. It cited the need to save the time and expense of seeking permit renewal. Its quibble was that a larger universe of permits should benefit from the automatically lengthening -- those permits issued since 2004, years before the recession occurred, through 2013. The Planning & Development Committee did not adopt that lengthier time period.

Raised Bill 869 addresses those agencies which require regulated activities to be conducted in a certain time period and requires that period to be a minimum of three years. There are a number of agencies in the state which routinely require all regulated activities, once commenced, to be completed in a 12-month period. I don’t know where the 12 month period came from. It’s not in the 2006 version of the DEP model regulations. For some agencies this is just a practice, for others it is codified in their municipal regulations. I’ve never understood the restriction of a 12 month period when the permit is valid for 2,3 or 5 years. What value is a 5 year permit if the 12 month from commencement period trumps the permit length? I get the reason to restrict certain activities to certain seasons or to certain weather conditions. But a 12 month period seems an end run around the statutory minimum length of permits.

The legislative fix to this unbased practice is to continue to allow agencies to establish a specific time period in which to conduct regulated activities but to require a minimum of 3 years for that to occur. I did hear a land use attorney speak out against this, not at the public hearing, but at the Connecticut Bar Association's Land Use seminar held last weekend for municipal land use agency members and their staff. The gist of his sentiment was: why should a simple driveway crossing be allowed to take up to three years? Perhaps one-size permit length doesn't fit all situations. But that is the consequence of the arbitrariness of agencies which routinely impose a 12-month period for all regulated activities -- legislative pushback.

Again, the sole entity/person submitting written comments at the public hearing, The Home Builders Association of Connecticut endorsed that proposal and urged this further amendment: “The specific time period within which any regulated activity shall be conducted shall commence when the regulated activity is physically started on the site.” This is to address, what the Home Builders describe as the timing problems, with projects needing other municipal land use or state agency approvals. Again, the Planning & Development Committee did not adopt the Home Builders' suggestion.

Raised Bills 859 and 869 are poised for further legislative action. If Raised Bill 869 is enacted, the statutory language will need to be corrected to eliminate the possibility of 2 year permit which this bill mandates.

Saturday, February 19, 2011

A new concept: rebuttable presumptions & wetlands agencies

House Bill 5068, if approved, would establish a “rebuttable presumption” regarding wetlands permit approval of a dry hydrant in lakes, ponds and streams. The need, as explained by Burlington volunteer firefighter Jeffrey Bond, is to facilitate access to water to fight fires who aren’t adept at filling out wetlands application and going through a multi-month process with municipal wetlands agencies. A dry hydrant, adds the DEP, involves the permanent installation of a non-pressurized pipe into a lake, pond or stream to provide water to fill a fire truck tank to be used in fire suppression. Senator Beth Bye, whose district includes Burlington, strongly supports this bill, but acknowledges the opposition of Conference of Connecticut Municipalities (CCM) to such a bill in 2009. The bill would “tilt the playing field” against wetlands agencies. Senator Bye believes that protecting public safety is a valid reason to do so.

Is this an example of a bill that a legislator marks “by request” for a constituent? See the previous blog entry. There’s no way for us to know, so we’ll continue to proceed as if this could indeed become enacted.

Here’s the proposed addition to the Inland Wetlands & Watercourses Act:

There shall be a rebuttable presumption for the approval of any application for the installation of a dry hydrant in wetlands and watercourses. Such presumption may be rebutted by a finding that there is a feasible and prudent alternative access to a public water supply that has a less adverse impact on wetlands and watercourses.

DEP raises a good point: if the reason is for fire control, why not say so? The bill would allow any use of a dry hydrant to enjoy the considerable benefits of semi-automatic approval. Such as irrigation of playing fields by towns/school or lawns/gardens by landscapers/homeowners.

Let’s be clear: a “rebuttable presumption” means that if somebody, other than the fire department applicant, doesn’t come up with information on the fire department’s access to a water supply, the location of the dry hydrant must be approved. The only other “somebody” in every wetlands application is the wetlands agency. As Rivers Alliance notably pointed out, this is a shift in the burden of proof. In fact, I would add, this is the first instance in the almost-40 year history of the wetlands act that the agencies would have the burden of proof in order to carry out their protective duties under the Act and the only instance of difficulty getting a permit for dry hydrants. The wetlands agency would have to investigate whether alternate water supplies exist and then evaluate whether those supplies have less adverse impact.

Why would wetlands agencies have superior knowledge of what access the fire department has to public water supplies? (Rivers Alliance points out that access to other water supplies should not be limited to public ones.)

Can’t that “burden” still be on the fire departments? Why aren’t town engineers assisting fire departments fill out these applications? If the town doesn’t support the fire department with engineering resources to go through the application process, is there more reason to believe it would support the wetlands agency with that technical support? If the agency needs to hire an expert to make that evaluation, does it pass those expenses back to the “applicant,” the fire department? Maybe the town needs to get itself together and not tinker with the wetlands act.

Thursday, February 17, 2011

The opacity of the legislative process

I've been reading through, weeding through a number of legislative bills to decide which to feature in this blog. Besides the criterion of wetlands I'm looking for bills that will have legs and get somewhere. Not so easy to determine. Not just because no one can predict what bills will gain political momentum and be voted into law. The General Assembly has its own signals for which bills are "for show." Perhaps you always knew this. It was news to me when Representative Linda Gentile, co-chair of the Planning & Development Committee of the General Assembly, spoke before the attorneys in the Planning & Zoning Section of the CT Bar Association two nights ago.

The dialogue between members of the Bar section and Rep. Gentile began innocuously enough. When questioned by a land use attorney as to whether anyone screens the bills to remove the ones that solve non-existent problems (e.g., a bill to remove the requirement for public hearings with site plan approvals when no such requirement exists), she answered it with a twist: some bills are filed by legislators at the request of constituents which the legislator has no expectation will pass, and perhaps no inclination to pursue. The bill is given life, however brief, to show the legislator's attentiveness to constituent requests. But not to worry, Rep. Gentile, told us, the rest of them don't spend a lot of time on these bills. They are coded so that no one gets overly exercised. Somewhere the bill is marked "by request." That is the signal shall we say, to ignore the bill. That is, it is a signal to the legislators. I have not been able to find the "by request" designation on the Connecticut General Assembly's website which is an excellent tool for accessing the status of pending bills. She indicated another sign that a legislator is doing constituent work, meaning not pursuing the bill: when a legislator submits a letter to the chair of the committee copied to the constituent who requested it . . . a veritable kiss of death.

The problem is the public doesn't know which bills are faux bills. They are scheduled for public hearing. Why? If a legislator requests it, she explained, it is hard to turn down the request as she may be seeking the same consideration in the future. So, advocates who are truly interested in the bill may get caught up in the drama of a public hearing only to find the actors mere facades. This may only be known in retrospect, if at all.

For the next few weeks I will highlight some of the bills in which the content would bring about a change if passed. Will I be wasting your time on bills with no trajectory? Well, at least I won't be intentionally wasting your time.

Saturday, February 5, 2011

Consolidating municipal wetlands agencies into districts - an idea whose time has come?

DEP has recently responded to an inquiry from a wetlands agent in Fairfield County about the legality of establishing a multi-town wetlands agency. The catalyst came in the form of a warning from the chief elected official to the agent to be well versed in the topic of consolidation, given the upcoming budget struggles. The wetlands act has provided authority for multi-town districts since its passage in 1972 with this wording in General Statutes § 22a-42 (e):

"Any municipality, pursuant to ordinance, may act through the board or commission authorized in subsection (c) of this section to join with any other municipalities in the formation of a district for the regulation of activities affect the wetlands and watercourses within such district."

. . . and no municipality has taken the opportunity to protect its resources in that way. Too difficult to figure out how to appoint fewer people to manage multi-town resources? It can't be more difficult than establishing regional schools. We don't manage our other natural resources or environmental issues on a town-by-town basis: air, hazardous waste, pesticides. Will it take the current recession to put a chink in the mote of home rule?

I'd like to envision fewer wetlands agencies in a number of consolidated districts, based on watersheds, so that there could be meaningful, consistent policy implemented across town lines. With fewer commissions there would be a need for fewer commission members. The competition would be so stiff to get on a commission that candidates would pledge to complete DEP training and reenroll for Segment II (legal updates) every year in order to be appointed. By then, DEP would have many opportunities for training webinars and DVDs, in addition to the immutable core of live training. The preapplication process would be heavily relied on and professional handled, so that applicants wouldn't waste time in lengthy, unproductive hearings, but would receive clear signals that they could plan projects around. The few municipal holdouts would be gazing, with such longing, at the successful and fiscally prudent regulation of wetlands and watercourses that they would eventually petition to join a district.

In my lifetime?

Friday, February 4, 2011

Don't miss the free webinar on vegetated riparian corridors

Thanks to the good folks at CLEAR, (the Center for Land Use Education and Research), you can participate in a free hour-long webinar on riparian corridors, next Tuesday, February 8th from 2-3pm. Here is CLEAR's description of the course from its website:

"Riparian, or streamside, corridors provide a host of environmental benefits, from erosion control and wildlife habitat to water quality protection. What is the state of riparian corridors in Connecticut, and what options are there for addressing riparian corridor protection?

This webinar will focus on a recently completed CLEAR study showing changes to 100 foot and 300 foot riparian corridor areas during the 21-year period from 1985 to 2006. We will review statewide, watershed, and town-level data, and demonstrate the use of the project website. We will also present information on the functions and values of riparian corridors of various widths, the relationship between wetlands and riparian corridors, and the need for local commissions, land trusts and other conservation groups to work together on the conservation of these critical areas."

The timing is just right to consider Senator Meyer's bill on vegetation in riparian corridors, Bill # 832, the next day when the Environment Committee of the General Assembly holds its public hearing.

Riparian corridors is the topic that will kick-off the 2011 monthly webinar series. The other topics include: affordable housing, rain gardens, google maps mashups, brownfields, global positioning systems (GPS), permeable pavements for stormwater control, farm-friendly plans and regulations, and CLEAR web tools.

Sign-up for the riparian corridor webinar on CLEAR's website by clicking here.

And if you like the ease and the format of a webinar, let DEP know that you'd like webinars to be part of its training for wetlands commission members.

Thursday, January 20, 2011

Tribute to Les Mehrhoff

Connecticut lost one of its giants in the area of plant conservation with the death of Dr. Les Mehrhoff in December 2010. He was known for his work at DEP on the inventory for the state's Natural Diversity Database. in 1996 he the DEP to become the curator of the George Safford Torrey Herbarium at the University of Connecticut, where he worked until his retirement in 2009. He was active at the state and New England regional levels. His efforts helped bring about the passage of the state's Endangered Species Act and legislation addressing invasive species. He worked on establishing a Rapid Assessment Network for New England to coordinate the status of invasive plants in the six-state area. He was well-known for his work on the Invasive Plant Atlas of New England.

You can listen to a tribute aired on Connecticut Public Radio a few days ago by clicking here. You can read the reminiscences of his colleagues here and here.

As stated in his obituary, his family requests that you remember him by performing an act of kindness for the preservation of our environment.