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 So, before the water can be withdrawn the fire department will need to put in writing its plan to withdraw water for firefighting purposes.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.