The Consequence of Good Government

Today I daylight the promulgation of a longstanding "policy" of the Stamford wetlands agency, the Environmental Protection Board, into regulation as of April 6, 2010. According to Dave Emerson, the longstanding staff person to the EPB, the board has had a longstanding "informal policy" of "no net loss" policy for wetlands and watercourses. Just to review, the Inland Wetlands and Watercourses Act does not establish a policy of "no net loss" of wetlands and watercourses. It sets forth a process to be implemented at the municipal level, a process of balancing natural resource considerations with use of property. Each municipal agency, if it follows the law (the statutes and the case law precedent), can draw that line where it wishes.

Earlier this year I reported on a legislative proposal that was an attempt to circumscribe the use of policy or guidance statements that have been relied on by regulators as regulations, without having been adopted as regulations. In the wetlands context I reflected on how the Connecticut Stormwater Quality Manual and the 2002 Connecticut Guidelines for Soil Erosion and Sediment Control are too frequently referred to as "standards" by municipal wetlands agencies.

The EPB, according to Dave Emerson, was influenced by that post to cogitate on its "longstanding informal policy" of no net loss. Through regulatory action, and approved by the Stamford Board of Representatives, the EPB has added subsection (c) to Section 1.3 to its regulations, the "no net loss" policy, as follows:

In the furtherance of the foregoing goals the Environmental Protection Board hereby adopts a “no net loss policy for all wetlands and watercourses.” In furtherance of the no net loss policy, the EPB may require wetland mitigation that may include Avoidance by evaluating alternative development designs and sites; Minimization by implementing special design features and construction practices so that impacts to wetlands can be minimized; and Compensation by offsetting remaining wetland losses through measures to, in the following order of priority, enhance and create productive wetland or watercourse resources either onsite or offsite.

Now, everyone is on equal footing. You don't have to be the longstanding staff person to the board, or a longstanding member of the board, or a longstanding local watchdog. You can file an application for the first time or pick up the regulations tomorrow and realize everyone is going to be addressing no net loss when the application comes up. Exactly the reason that important policies that are used uniformly need to be adopted as regulations.

As the mother of two teenagers I am called upon (too often) to comment on acts (foolish, thoughtless or worse) and their consequences (pouting, punishment, and general family agita). It's the "act/consequences" discussion. So, I am happy to congratulate the Stamford Environmental Protection Board on turning its thoughts into action. An action which serves applicants, concerned citizens and every person appearing for the first time before the Stamford wetlands agency.

Raised Senate Bill No. 120: Legislative Review of DEP Guidance Documents

Although in a short session, the legislature is giving us a number of proposals to consider. In the last post we looked at a bill addressing enhancements to the wetlands act. That bill, Raised Bill No. 205, proposed an agency's consideration of guidance documents, which we pondered in the last post. This past week public hearings were held on two bills affecting wetlands agencies, one explicitly addressing guidance documents. Thanks to the IT wizards at the legislature who have promptly uploaded written comments onto the General Assembly's website, we can follow the debate without dodging the wintry weather mix we endured this week.

The leit motif is: time is not on their side. Who "they" is depends on which bill you're looking at.

Time is not on their side, Part I --
The DEP Commissioner and environmental groups:
Raised Senate Bill No. 120: An Act Authorizing Review of the Department of Environmental Protection's Guidance Statements and Policies by the General Assembly's Regulation Review Committee

This bill authorizes the legislature's regulation review committee to review a specific DEP policy or guidance document to determine that such document constitutes a regulation. A regulation is defined in General Statutes § 4-166 as "each agency statement of general applicability, without regard to its designation, that implements, interprets, or prescribes law or policy . . ." The review is triggered by the submission of a petition signed by a minimum of twenty-five persons who claim that the document when applied to them constitutes a regulation. The committee's review may involve a public hearing. After the public hearing (or presumably any review which did not involve a public hearing) the committee shall inform the Commissioner of Environmental Protection of its determination. The committee may make "any recommendation . . . consistent with such determination."

The stated purpose of the bill (at the bottom of the bill) is to provide the regulated community with an opportunity to have DEP guidance statements and policies reviewed. That is true; it is a lopsided bill. It does not seek to empower the public, other governmental agencies or municipalities to have the same access to legislative review.

The bill's breadth far exceeds issues arising under the Inland Wetlands & Watercourses Act. Still, there are a number of significant guidance documents that are in common circulation in the inland wetlands regulated community. There are the DEP Model Municipal Inland Wetlands Regulations. They do work out well as a model. Each municipality decides whether to adopt them, in whole or part, as regulations. The DEP created a guidance document on upland review areas, namely: "Guidelines Upland Review Area Regulations, Connecticut's Inland Wetlands and Watercourses Act." The state Supreme Court referred to this document as an aid to municipalities when they are defining regulated areas and activities. See Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 184 n.8 (2000).

How often have wetlands agencies held up the 2004 Connecticut Stormwater Quality Manual and the 2002 Connecticut Guidelines for Soil Erosion and Sediment Control as if they were adopted regulations? At dispute in Finley v. Inland Wetlands Commission, 289 Conn. 12 (2008), discussed earlier in this blog, was the wetlands permit issued by the Orange wetlands agency to Stew Leonard's. The permit's conditions (listed in footnote 5 on page 16) included: "[r]evised and updated erosion control plan that implements all [s]tate [r]egulations." What state regulations? There are no state regulations which establish the standards for municipal permit issuance. The majority opinion, at page 41, concluded that it was "implicit" in a condition requiring revisions to the erosion control plan to meet state regulations that the application did not comply with the state regulations.

The emperor's new clothes just seem to be taking on more and more fabric.

The Supreme Court never established what "state regulation" the application failed to comply with. The concurring opinion, at page 45, held that the application "either lacked an erosion and sedimentation control plan . . . or included one whose failure to comply with the relevant regulatory scheme could not be addressed by reasonably specific conditions of approval." The concurring opinion acknowledged, in footnote 3 on pages 45-46, that the 2002 Guidelines for Soil Erosion and Sediment Control were just guidelines and do not have the force of law. But back in the main text the opinion continued to hold, as did the majority opinion, that the application did not comply with the applicable regulatory scheme, without pointing out the specific state regulations.

The emperor's new clothes are made of ever-denser fabric.

Perhaps that is part of the problem. Whether intended or not, guidelines, especially in the absence of regulations, take on regulatory character.

The DEP Commissioner, Amey Marrella, submitted testimony that emphasized that the bill would lead to "lengthy and unnecessary delays and costs. . ." She refers to the value of guidance documents as complementing and not supplanting regulations. That may well be true, in areas where the guidance documents play a supporting role. In the inland wetlands scheme where no state regulations have been adopted, the guidance documents take on a leading role.

Environmental groups characterize the bill as requiring the DEP to do "more with less and less" and that DEP "has experienced extreme delays and difficulty completing the full rulemaking process." Some groups note the inherent tension in having both the legislature (through the regulation review committee) and the courts (through an action for declaratory judgment) determine whether a document constitutes a regulation.

In the most colorful language used in testimony, the Home Builders Association of Connecticut characterizes wetlands agencies' reliance on the 2004 Connecticut Stormwater Quality Manual as "biblical." Other proponents want their opportunity to be heard on a given topic. This assumes, however, that the regulation review committee will hold a public hearing on their claim or the DEP will decide, based on the recommendations of the committee, to adopt the document as a regulation. The Connecticut Petroleum Council wants the bill to go further by requiring a public hearing before any policy statement is adopted, including major DEP policies adopted by the Governor's Office.

A public hearing before the DEP endorses "No child left inside"?

The Home Builders and the Connecticut Business and Industry Association attached lengthy lists of documents designated guidance or policy which they believe constitute regulations.

One proponent and some opponents recognize the value of guidance documents as well as the need for adopting policy through regulations.

With Raised Senate Bill No. 120 the Commissioner and environmental groups raise the lack of time to adopt guidance documents as regulations. In the next post we'll examine the bill to expedite permitting procedures, where the regulated community claims the lack of time to obtain all necessary permits.