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.

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