Monday, February 22, 2016

Do not go gentle into that DEEP good night: Raised Bill #141: Part II

The dismantling of the state oversight of municipal wetlands law implementation.

In this post I will focus on what DEEP proposes NOT to do and its willingness to give the shirt off – well, we’ll get to that in another post.  To begin, the first listed duty of the Commissioner in the statutes is to “exercise general supervision of the administration and enforcement of sections 22a-36 to 22a-45, inclusive.”  Connecticut General Statutes (CGS) § 22a-39 (a).  If DEEP has its way with this raised bill,  “general” supervision is all that will be left, since its specific authorities will have been voluntarily handed back to the legislature.

I don’t know how DEEP intends to exercise general supervision, but here is how they specifically intend not to do it:

1) eliminate DEEP authority to issue orders pursuant to § 22a-6 (unilateral orders) and § 22a-7 (cease and desist orders) of the general statutes where the municipality has failed to enforce its regulations or where, as currently established in CGS § 22a-44 (a).  See section 7 of Raised Bill #141.

2) eliminate DEEP authority to revoke the authority of a municipal wetlands commission which has “consistently failed to perform its duties under” the wetlands act, as currently established in CGS § 22a-42d.  See section 9 of Raised Bill #141.

3) eliminate DEEP authority to review and act on municipal applications where the agency or its agent failed to act within mandated timeframes, as currently established in CGS § 22a-42a (c) (1).  See section 4 of Raised Bill #141.

The current statutory scheme envisions DEEP as the backstop to deviant, outlier municipal action.  Where the town wetlands commission fails to enforce its own regulations, the citizens of that town won’t be harmed because DEEP can step in and issue the needed orders.  If that wetlands commission “consistently” fails to do its job, DEEP can remove the authority of the town to regulate its own wetlands and watercourses.  I’ve seen a handful of examples where DEP/DEEP stepped up and issued orders. They generally involved large, complicated sites where DEEP’s expertise could match the challenges the sites posed.

I was involved in the first instance that DEP began action to revoke a town’s authority in the late 1980s.  I had represented the DEP’s interest in a municipal wetland appeal brought to superior court.  I recall submitting a brief to court that the list of what the commission did wrong was so long it would be easier to list what it had done right.  This was a commission where the applications were kept at the chairman’s place of business.  To see the “public documents” you had to make an appointment during work hours to examine the application.  It went downhill from there.  The matter was resolved through education and modification of commission procedure.  That is a perfect example of how DEEP can play a very meaningful role in supervising municipal implementation of the wetlands law.

Both of these tools are seldom implemented.  The deterrent effect of these tools, however, is immeasurable.  It is always the Commissioner of DEEP’s discretion when to use these extraordinary tools.  And that discretion is not second-guessed by the courts.  When citizens have sued DEP/DEEP for failure to enforce environmental laws, the Attorney General’s Office has successfully defended DEEP.  Federal and state courts have deferred to DEEP’s “prosecutorial discretion” not to pursue enforcement.

If DEEP can choose to enforce (or not enforce) based on its staff and budget (or lack of them), why is a permanent dismantling of the state supervision of municipal implementation necessary or warranted?

As for the third issue.  I’ve always felt that the cure was worse than the disease.  You think that the town takes too long to process your application?  Just wait until you remove the application from the town and file it with DEEP where there are no there are no time limits.  No tears shed over this give-back.  Although, I do recall that the Bridgewater wetlands commission did refer an application to (then) DEP to process an application because the applicant had a suit pending in federal and/or state court against the commission and its individual commission members for action on a previous application.  That was a perfect solution.  The transfer to DEP eliminated legal claims of bias, etc.  I guess DEEP is well past looking for perfect solutions.

The next entry will be on DEEP’s proposed solution to the gap left by eliminating DEEP oversight.



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