Saturday, February 22, 2014

Odyssey to the shores of municipal wetlands regulations

             It all started last June when I received an email with a link to some “over-the-top” wetlands regulations establishing vegetated buffers. (You can only mow your lawn once a season and that is only if it was a “formal lawn” as of the effective date of the regulation.) I was asked if I knew about these municipal wetlands regulations.   Indeed I didn’t .  Although I had worked with a loose consortium of environmental interests for three legislative sessions on wording for a bill to protect vegetated buffers in the wetlands law, I don’t think any of us knew that some wetlands commissions had already adopted regulations.  I sent out the link to two attorneys, one who might have had a hand in guiding the regulations (Attorney Mark Branse swears he didn’t) and one in the attorney general’s office who may have sniffed around these regulations either from DEEP or from reviewing all appeals filed in superior court of municipal wetlands agency decisions (AAG David Wrinn swears similar to Mark Branse, at least in this regard).

              I began to wonder how many other towns had vegetated buffer or other anomalies in their regulations, which are not found in the 2006 versions of the model regulations developed by DEEP.  In a state of home rule that means 169 varieties of municipal wetlands regulations.  There is an entity to “exercise general supervision of the administration and enforcement” of the wetlands act, CGS § 22a-39 (a), and to “develop comprehensive programs in furtherance of the purposes” of the act, CGS § 22a-39 (b), and to “advise, consult and cooperate with other agencies . . .”, CGS § 22a-39 (c), and to “encourage, participate in or conduct studies, investigations, research and demonstrations, and collect and disseminate information, relating to the purposes of” the act, CGS § 22a-39 (d) -- it’s not a private citizen.  The Commissioner of DEEP has those duties and more. 

              Municipal agencies are required to send a copy of the public notice of proposed amendments to municipal regulations to DEEP at least 35 days prior to the scheduled public hearing.  CGS § 22a-42a (b).  True, the wetlands act doesn’t explicitly require DEEP to do anything with those regulations.  And indeed they don’t . . . do . . . anything . . . with proposed regulations.  This is not a recent behavioral change.  At some point, maybe in 2000, I read a memo from the DEP Inland Water Resources Division that DEP would no longer continue reviewing proposed municipal regulations as they were sent to DEP due to staff constraints.  At the time I was in the Attorney General’s Office working on wetlands issues; I approached as many DEP staff as possible to reverse that decision.  To no avail.

              During the summer of 2013 I continued to wonder about the variability (read: legality) of the permutations found within municipal wetlands regulations.  Those musings lay unexplored just like the grass growing in that formal lawn in that municipally-established vegetated buffer not yet ripe for its once-a-season cutting.

              I set off on my odyssey in September 2013 in which I began looking at the municipal regulations of a “few” municipalities which turned into an obsession and ultimately to a systematic examination of the municipal regulations of 95% of all towns.  I compiled and analyzed the definitions of “regulated activity” and the concepts, if they existed in the regulations, of upland review area, vernal pools and vegetated buffers.

              Next: methodology

1 comment:

Bethc said...

Glad to see you're back!!!