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.
Thursday, May 20, 2010
Friday, April 23, 2010
Natural Vegetation Bill "Killed" for Session States Environment Committee Co-Chair
In an open letter dated April 15, 2010 to "Environment Advocates and Other Interested Persons" Senator Ed Meyer, co-chair of the Environment Committee, announced that the Planning and Development Committee of the General Assembly "killed" the Natural Vegetation Bill, File No. 190 by failing to act on it during its April 14th meeting. In the letter Senator Meyer sets forth procedurally what occurred (or didn't) leading up to the Planning and Development Committee's failure to vote on the bill. I attach the letter to establish that it was not a dispute on the merits that sealed the bill's fate. The internecine battles in the political arena have obscured whether any policy issues were considered.
Is the "killed" bill dead? It's not over until it's over. Resurrection may just be one amendment away.
Is the "killed" bill dead? It's not over until it's over. Resurrection may just be one amendment away.
Thursday, April 22, 2010
My, how the Environment Committee has strayed from the spirit of Earth Day 1970
April 22, 1970. Those were heady days. Throngs of people gathering and clamoring for change. In Connecticut the next legislative session following Earth Day resulted in the passage of the bill creating the department of environmental protection at the same time as the enactment of the Connecticut Environmental Protection Act: establish a state agency to do the job but also create a mechanism for anyone to protect the natural resources from unreasonable impact. This giddy enthusiasm for protecting natural resources continued into the 1970s for inland wetlands and watercourses. It was in the spring of 1972 when the bare bones of the Inland Wetlands and Watercourses Act was overwhelmingly passed.
People were effusive in their support of the original bill -- a bill which did not include a permitting requirement or any other requirement. Attorney Russ Brenneman, special counsel to the newly formed DEP, testified that inland wetlands should be managed and not left to the private sector. He noted that the zoning enabling act was not broad enough. DEP was there to listen: it could not handle the administrative burden of regulating wetlands, so he noted. He thought that DEP would issue a series of protective orders.
The bill looked like this:
· the legislative finding that we all know and which is quoted verbatim by the Connecticut Supreme Court in almost every decision: the act is a matter of balancing the environment with economics
· the (same) title
· the same exemptions, which you love/hate depending on who you are, were written in a confusing way (Aren't the exemptions confusing now, too? Yes, but they were way more ambiguously written, if you can imagine that.)
· a section with definitions, including many which still exist, such as "regulated activity" even though regulated activities weren't "regulated" under the original bill.
· a description of the commissioner of DEP's authority over inland wetlands: supervise the act, develop a comprehensive program, advise, consult and cooperate with other agencies, promulgate regulations to protect wetlands and watercourses, and inventory those resources.
· a list of factors for consideration when the commissioner of DEP goes about creating a regulatory system for wetlands/watercourses
· a policy of encouraging, not requiring, municipal participation in wetlands affairs by acquiring wetlands, regulating them by adopting regulations consistent with DEP's regulations once DEP promulgates them.
· a right to appeal a "regulation, order, decision or action" under the act, with a court assessing damages if a taking of property is proven
· enforcement of violations solely by direct action in court -- no provision for cease and desist orders
· the right to have property revalued for tax purposes if a wetlands license is denied
Public Act 155 in the 1972 session was approved on May 19, 1972. It was pregnant with hope and trust that either through DEP regulations or further legislative action a meaningful regulatory mechanism would emerge to protect wetlands and watercourses.
The wetlands act with its substantive and procedural requirements as we know it today did not exist in 1972. The sine qua non -- no regulated activity shall be conducted without a permit -- had yet to be created. "License" was included as one of the original definitions to mean: "the whole or any part of any permit, certificate approval or similar form of permission which may be required of any person by provisions of this act." The legislature used words that anticipated that regulated activities would be subject to a licensing procedure. But how, who, what, when all remained in the future. The permit requirement emerged in 1973, codified in General Statutes section 22a-42a, since all of the section numbers had already been assigned.
Fast forward to mid-April 2010. Just a few days before the 40th anniversary of Earth Day the Environment Committee voted to endorse a bill voted out of the Commerce Committee, File No. 380, An Act Concerning the State's Regulatory Environment. I won't dispute the merits of expediting the issuance of state permits. But the Environment Committee endorsed a bill that includes a provision of automatic approval of DEP permits that aren't issued within a specified time.
Section 3 of File No. 380 requires DEP to submit to the Environment and Commerce Committees of the legislature by January 1, 2011, a pilot program applicable to a permitting program affecting at least 250 manufacturing or other industrial facilities. The plan that DEP must provide has to:
· impose a time limit for issuing a permit
· provide for default approval for any permit not issued within the time limit unless the permit has been denied "for good cause" or the time limit has been extended
· include standards for "good cause" denial
· list permissible reasons for extending the time limit
· limit the number of extensions which the commissioner may grant.
If this emerged solely from the Commerce Committee, one might reflect that the legislative committee was doing its job, trying to protect commerce in the state, even if imperfectly designed. But this was sent to the Environment Committee which has passed it out of committee earlier this week. Creating this pilot program requires the Commissioner of Environmental Protection to violate the policy of the state set forth in the opening section of Title 22a "Environmental Protection" that the state act as "trustee of the environment for the present and future generations."
My, how the Environment Committee has strayed from the spirit of Earth Day 1970.
People were effusive in their support of the original bill -- a bill which did not include a permitting requirement or any other requirement. Attorney Russ Brenneman, special counsel to the newly formed DEP, testified that inland wetlands should be managed and not left to the private sector. He noted that the zoning enabling act was not broad enough. DEP was there to listen: it could not handle the administrative burden of regulating wetlands, so he noted. He thought that DEP would issue a series of protective orders.
The bill looked like this:
· the legislative finding that we all know and which is quoted verbatim by the Connecticut Supreme Court in almost every decision: the act is a matter of balancing the environment with economics
· the (same) title
· the same exemptions, which you love/hate depending on who you are, were written in a confusing way (Aren't the exemptions confusing now, too? Yes, but they were way more ambiguously written, if you can imagine that.)
· a section with definitions, including many which still exist, such as "regulated activity" even though regulated activities weren't "regulated" under the original bill.
· a description of the commissioner of DEP's authority over inland wetlands: supervise the act, develop a comprehensive program, advise, consult and cooperate with other agencies, promulgate regulations to protect wetlands and watercourses, and inventory those resources.
· a list of factors for consideration when the commissioner of DEP goes about creating a regulatory system for wetlands/watercourses
· a policy of encouraging, not requiring, municipal participation in wetlands affairs by acquiring wetlands, regulating them by adopting regulations consistent with DEP's regulations once DEP promulgates them.
· a right to appeal a "regulation, order, decision or action" under the act, with a court assessing damages if a taking of property is proven
· enforcement of violations solely by direct action in court -- no provision for cease and desist orders
· the right to have property revalued for tax purposes if a wetlands license is denied
Public Act 155 in the 1972 session was approved on May 19, 1972. It was pregnant with hope and trust that either through DEP regulations or further legislative action a meaningful regulatory mechanism would emerge to protect wetlands and watercourses.
The wetlands act with its substantive and procedural requirements as we know it today did not exist in 1972. The sine qua non -- no regulated activity shall be conducted without a permit -- had yet to be created. "License" was included as one of the original definitions to mean: "the whole or any part of any permit, certificate approval or similar form of permission which may be required of any person by provisions of this act." The legislature used words that anticipated that regulated activities would be subject to a licensing procedure. But how, who, what, when all remained in the future. The permit requirement emerged in 1973, codified in General Statutes section 22a-42a, since all of the section numbers had already been assigned.
Fast forward to mid-April 2010. Just a few days before the 40th anniversary of Earth Day the Environment Committee voted to endorse a bill voted out of the Commerce Committee, File No. 380, An Act Concerning the State's Regulatory Environment. I won't dispute the merits of expediting the issuance of state permits. But the Environment Committee endorsed a bill that includes a provision of automatic approval of DEP permits that aren't issued within a specified time.
Section 3 of File No. 380 requires DEP to submit to the Environment and Commerce Committees of the legislature by January 1, 2011, a pilot program applicable to a permitting program affecting at least 250 manufacturing or other industrial facilities. The plan that DEP must provide has to:
· impose a time limit for issuing a permit
· provide for default approval for any permit not issued within the time limit unless the permit has been denied "for good cause" or the time limit has been extended
· include standards for "good cause" denial
· list permissible reasons for extending the time limit
· limit the number of extensions which the commissioner may grant.
If this emerged solely from the Commerce Committee, one might reflect that the legislative committee was doing its job, trying to protect commerce in the state, even if imperfectly designed. But this was sent to the Environment Committee which has passed it out of committee earlier this week. Creating this pilot program requires the Commissioner of Environmental Protection to violate the policy of the state set forth in the opening section of Title 22a "Environmental Protection" that the state act as "trustee of the environment for the present and future generations."
My, how the Environment Committee has strayed from the spirit of Earth Day 1970.
Wednesday, April 21, 2010
One More Appendage in the Amended Language of the Natural Vegetation Bill
In my last post I described the merger of the Enhancements to the Inland Wetlands and Watercourses Act, Bill 205, into the Natural Vegetation bill, Bill 123, now File No. 190. I referred to the appendages that the Natural Vegetation bill acquired, but omitted a description of one of those appendages. While awaiting the results of the bill's sojourn to the Planning and Development Committee last week, we'll look at those missing appendage.
Imported into the Natural Vegetation bill is the language originally found in the Enhancements bill:
The inland wetlands agency shall consider all relevant evidence brought before such agency or its agent by any person or entity, including, but not limited to, scientific evidence, expert opinion, direct observations made regarding the proposed regulated activity, environmental reviews, policy letters or guidance documents provided by or on behalf of an environmental review team or by the Department of Environmental Protection and written comments or oral testimony submitted by the Commissioner of Public Health or by or on behalf of a water company in response to written notice provided to such water company pursuant to section 22a-42f.
As I inquired the first time addressing this bill, is there someone out there who thinks that we're breaking new ground by requiring a wetlands agency to consider scientific evidence, expert opinion, and direct observations? Haven't agencies been doing that for 30+ years? I need some guidance, however, on what it means for a wetlands agency to consider "policy letters or guidance documents" by an environmental review team or the DEP. It certainly can't mean to consider the guidance document uniform policy to be implemented across the board -- or else that guidance document would have been adopted as a regulation. What exactly is the lay, volunteer wetlands agency being required to do when it "considers" a guidance document? That's a miasma begging for years of litigation to clarify.
What's odd is that a number of bills were circulated this session restricting or regulating DEP's use of guidance documents that haven't been adopted as regulations -- while the Natural Vegetation bill would "require" wetlands agencies to consider guidance documents. Consider Bill 120, now File No. 228, An Act Authorizing Review of the Department of Environmental Protection's Guidance Statements and Policies by the General Assembly's Regulation Review Committee, and Bill 174, now File No. 385, An Act Concerning the Standards of Water Quality.
It would be an ironic turn of events if the DEP, an agency chock full of experts, can't rely on guidance documents, while lay wetlands agency members are required to consider those documents.
Imported into the Natural Vegetation bill is the language originally found in the Enhancements bill:
The inland wetlands agency shall consider all relevant evidence brought before such agency or its agent by any person or entity, including, but not limited to, scientific evidence, expert opinion, direct observations made regarding the proposed regulated activity, environmental reviews, policy letters or guidance documents provided by or on behalf of an environmental review team or by the Department of Environmental Protection and written comments or oral testimony submitted by the Commissioner of Public Health or by or on behalf of a water company in response to written notice provided to such water company pursuant to section 22a-42f.
As I inquired the first time addressing this bill, is there someone out there who thinks that we're breaking new ground by requiring a wetlands agency to consider scientific evidence, expert opinion, and direct observations? Haven't agencies been doing that for 30+ years? I need some guidance, however, on what it means for a wetlands agency to consider "policy letters or guidance documents" by an environmental review team or the DEP. It certainly can't mean to consider the guidance document uniform policy to be implemented across the board -- or else that guidance document would have been adopted as a regulation. What exactly is the lay, volunteer wetlands agency being required to do when it "considers" a guidance document? That's a miasma begging for years of litigation to clarify.
What's odd is that a number of bills were circulated this session restricting or regulating DEP's use of guidance documents that haven't been adopted as regulations -- while the Natural Vegetation bill would "require" wetlands agencies to consider guidance documents. Consider Bill 120, now File No. 228, An Act Authorizing Review of the Department of Environmental Protection's Guidance Statements and Policies by the General Assembly's Regulation Review Committee, and Bill 174, now File No. 385, An Act Concerning the Standards of Water Quality.
It would be an ironic turn of events if the DEP, an agency chock full of experts, can't rely on guidance documents, while lay wetlands agency members are required to consider those documents.
Wednesday, April 14, 2010
Amended Language of the Natural Vegetation Bill, Raised Bill No. 123, is on its Way
On March 30 the amended language of the natural vegetation bill was made available. The amended language does more than make the Environment Committee said they were doing on March 15th when they voted "to make the bill permissive instead of mandatory." Since the bill is working its way to the Senate floor with a stop at the Planning and Development Committee, we'll look further into the amended language. I reported on Raised Bill 123 two posts ago. My conclusion at that time was that the 23 yea votes on the Environment Committee managed to vote out a bill that wouldn't satisfy any interest group that testified or submitted comments: from environmental groups, the Commissioner of DEP, the "exempt communities," and the home construction industry.
Let's see if the amended language changes any of that.
To begin, the natural vegetation bill has emerged from the Environment Committee to the floor of the Senate, with some new appendages and a new title to match. Raised Bill No. 123 morphed into File No. 190, and is now titled: "An Act Concerning the Preservation of Natural Vegetation near Wetlands and Watercourses and Certain Enhancements to the Inland Wetlands and Watercourses Act." The gist of the original natural vegetation bill was to prevent wetlands agencies from approving the removal of "natural vegetation" within 100 feet of wetlands and watercourses unless the agency made certain determinations. The amendment announced by the Environment Committee makes the bill "permissive." That's interesting. The DEP Commissioner and the land use attorneys from Shipman & Goodwin testified that the Wetlands Act already allows wetlands agencies to restrict the removal of natural vegetation on a case-by-case basis. Is this amendment just a feel-good change? Does this actually change the status quo?
Let's turn to the DEP Commissioner Amey Marrella's comments. She said she could support the bill if the prohibition against removal of natural vegetation was made permissive, instead of mandatory. Done. She recommended the removal of the proposed amendments to the farming exemption. The original draft included a reference to the definition of farming set out in General Statutes § 1-1 and deleted "harvesting of crops" as within the farming exemption. The current status of the bill still includes a reference to General Statutes § 1-1 but has allowed the phrase "harvesting of crops" to remain within the farming exemption. Half-done. The third revision Commissioner Marrella recommended was to delete section 3(d) of the original bill. Not done.
Let's look at section 3(d) of the bill. Section 3 is the new provision to be added to the Wetlands Act. In both versions subsection (d) reads:
" The as of right uses specified in section 22a-40 of the general statutes, as amended by this act, shall be permitted in areas of natural vegetation located within the distance around the wetlands or watercourse regulated by the municipality in accordance with subsection (a) of this section."
Let's break that apart. Section 22a-40 sets out the exemptions or the "as of right" uses. Under this bill the exemptions (such as farming, water company, residential use) "shall be permitted" in the wetlands/watercourse or the upland review area in accordance with subsection (a) -- which is the wetlands agency's authority to deny a permit for the destruction of natural vegetation.
Have you followed that? Activities that have been exempt for decades will require a wetlands permit under either version of this bill whenever the activity involves destruction of natural vegetation.
In other words, all of the exemptions have been cut back. If this bill passes, the exempt activities no longer include destruction of natural vegetation. Not for the expansion of crop land (§ 22a-40(a)(1)), not for the uses incidental to the enjoyment and maintenance of residential property (§22a-40(a)(4)), not for the construction and operation by water companies, of dams, reservoirs and other facilities necessary to the impounding, storage or withdrawal of water (§ 22a-40(a)(5)). There were no proponents who testified in support of eliminating the exemptions for removal of natural vegetation. Where did this come from? Did the drafters of this bill intend this outcome? Why was there no discussion about this except for the opposition raised by the "exempt" communities, i.e., the water companies, farmers, and timber harvesters? This is what the Commissioner of DEP opposed. The environmental community, with CFE as its spokesperson, also acknowledged the exemption and proposed no tightening of the exemptions, just a clarification.
Now to the new appendages of the natural vegetation bill. Although the Environment Committee didn't announce it when they voted the natural vegetation bill out of committee, the Enhancements to the Inland Wetlands and Watercourses Act bill was merged with the natural vegetation bill. (This bill was addressed in the February 19th post.) To be more precise, certain enhancements were merged and hence the use of that phrase in the title of the newly emerged bill: "An Act Concerning the Preservation of Natural Vegetation near Wetlands and Watercourses and Certain Enhancements to the Inland Wetlands and Watercourses Act."
The original enhancements bill proposed to revise the legislative finding, the first section of the Wetlands Act. That revision would have included language similar to the legislative finding for tidal wetlands in General Statutes § 22a-28, namely, "it is the public policy of this state to preserve the wetlands and to prevent the despoliation and destruction thereof." In the "certain enhancements" bill, this amendment is omitted. Instead, the language appears only in a section that currently declares that municipalities shall regulate activities within their territorial limits. Section 22a-42(a) would be amended to state that it is the public policy of the state to require municipal regulation and "to preserve and to prevent the despoliation and destruction of such wetlands and watercourses."
This kind of language is useful in a legislative finding. That is the first place the Connecticut Supreme Court looks for evidence of legislative intent. If the bill passes, can one party argue that the 2010 legislature meant no change because it deleted any change from the legislative finding -- while another party will claim that as long as the phrase appears anywhere in the Wetlands Act it is sufficient to show legislative change? And what will the courts do with both approaches in the statute: The need to balance protection of the resource with economic development (from the legislative finding) and the new language which states the public policy is to preserve wetlands and watercourses from destruction?
Well, which is it: balance or protection of the resource from destruction?
The Senate sent the bill over to the Planning and Development Committee for more musings (and amendments?). I thank Attorney Matt Ranelli for answering every question I ever have about the legislative process. Too soon to know if the legislature will act on this bill during this session. We'll check back later in the session.
Let's see if the amended language changes any of that.
To begin, the natural vegetation bill has emerged from the Environment Committee to the floor of the Senate, with some new appendages and a new title to match. Raised Bill No. 123 morphed into File No. 190, and is now titled: "An Act Concerning the Preservation of Natural Vegetation near Wetlands and Watercourses and Certain Enhancements to the Inland Wetlands and Watercourses Act." The gist of the original natural vegetation bill was to prevent wetlands agencies from approving the removal of "natural vegetation" within 100 feet of wetlands and watercourses unless the agency made certain determinations. The amendment announced by the Environment Committee makes the bill "permissive." That's interesting. The DEP Commissioner and the land use attorneys from Shipman & Goodwin testified that the Wetlands Act already allows wetlands agencies to restrict the removal of natural vegetation on a case-by-case basis. Is this amendment just a feel-good change? Does this actually change the status quo?
Let's turn to the DEP Commissioner Amey Marrella's comments. She said she could support the bill if the prohibition against removal of natural vegetation was made permissive, instead of mandatory. Done. She recommended the removal of the proposed amendments to the farming exemption. The original draft included a reference to the definition of farming set out in General Statutes § 1-1 and deleted "harvesting of crops" as within the farming exemption. The current status of the bill still includes a reference to General Statutes § 1-1 but has allowed the phrase "harvesting of crops" to remain within the farming exemption. Half-done. The third revision Commissioner Marrella recommended was to delete section 3(d) of the original bill. Not done.
Let's look at section 3(d) of the bill. Section 3 is the new provision to be added to the Wetlands Act. In both versions subsection (d) reads:
" The as of right uses specified in section 22a-40 of the general statutes, as amended by this act, shall be permitted in areas of natural vegetation located within the distance around the wetlands or watercourse regulated by the municipality in accordance with subsection (a) of this section."
Let's break that apart. Section 22a-40 sets out the exemptions or the "as of right" uses. Under this bill the exemptions (such as farming, water company, residential use) "shall be permitted" in the wetlands/watercourse or the upland review area in accordance with subsection (a) -- which is the wetlands agency's authority to deny a permit for the destruction of natural vegetation.
Have you followed that? Activities that have been exempt for decades will require a wetlands permit under either version of this bill whenever the activity involves destruction of natural vegetation.
In other words, all of the exemptions have been cut back. If this bill passes, the exempt activities no longer include destruction of natural vegetation. Not for the expansion of crop land (§ 22a-40(a)(1)), not for the uses incidental to the enjoyment and maintenance of residential property (§22a-40(a)(4)), not for the construction and operation by water companies, of dams, reservoirs and other facilities necessary to the impounding, storage or withdrawal of water (§ 22a-40(a)(5)). There were no proponents who testified in support of eliminating the exemptions for removal of natural vegetation. Where did this come from? Did the drafters of this bill intend this outcome? Why was there no discussion about this except for the opposition raised by the "exempt" communities, i.e., the water companies, farmers, and timber harvesters? This is what the Commissioner of DEP opposed. The environmental community, with CFE as its spokesperson, also acknowledged the exemption and proposed no tightening of the exemptions, just a clarification.
Now to the new appendages of the natural vegetation bill. Although the Environment Committee didn't announce it when they voted the natural vegetation bill out of committee, the Enhancements to the Inland Wetlands and Watercourses Act bill was merged with the natural vegetation bill. (This bill was addressed in the February 19th post.) To be more precise, certain enhancements were merged and hence the use of that phrase in the title of the newly emerged bill: "An Act Concerning the Preservation of Natural Vegetation near Wetlands and Watercourses and Certain Enhancements to the Inland Wetlands and Watercourses Act."
The original enhancements bill proposed to revise the legislative finding, the first section of the Wetlands Act. That revision would have included language similar to the legislative finding for tidal wetlands in General Statutes § 22a-28, namely, "it is the public policy of this state to preserve the wetlands and to prevent the despoliation and destruction thereof." In the "certain enhancements" bill, this amendment is omitted. Instead, the language appears only in a section that currently declares that municipalities shall regulate activities within their territorial limits. Section 22a-42(a) would be amended to state that it is the public policy of the state to require municipal regulation and "to preserve and to prevent the despoliation and destruction of such wetlands and watercourses."
This kind of language is useful in a legislative finding. That is the first place the Connecticut Supreme Court looks for evidence of legislative intent. If the bill passes, can one party argue that the 2010 legislature meant no change because it deleted any change from the legislative finding -- while another party will claim that as long as the phrase appears anywhere in the Wetlands Act it is sufficient to show legislative change? And what will the courts do with both approaches in the statute: The need to balance protection of the resource with economic development (from the legislative finding) and the new language which states the public policy is to preserve wetlands and watercourses from destruction?
Well, which is it: balance or protection of the resource from destruction?
The Senate sent the bill over to the Planning and Development Committee for more musings (and amendments?). I thank Attorney Matt Ranelli for answering every question I ever have about the legislative process. Too soon to know if the legislature will act on this bill during this session. We'll check back later in the session.
Monday, March 29, 2010
New: Judicial Branch's Standing Order on Land Use Appeals
Last Thursday, March 25th, the Judicial Branch posted the new Standing Order on Land Use Appeals on its website. The standing order will take effect on May 1, 2010. This order applies appeals of agency actions from: planning commissions, zoning commissions, planning and zoning commissions, zoning boards of appeal, inland wetlands and watercourses agencies, aquifer protection agencies, historic district commissions, water pollution control agencies. It does not apply to affordable housing appeals brought pursuant to General Statutes Chapter 126a. It also does not cover appeals from state agencies pursuant to the Uniform Administrative Procedures Act, General Statutes § 4-183.
Each judicial district will create and maintain a land use appeals calendar which will be held monthly, presumably like other short calendars, though not necessarily, on a Monday. Within 30 to 60 days of the return date on a land use appeal, the appeal will appear on the judicial district's land use calendar. All counsel and pro se parties must appear in court on the date and time printed on the calendar.
Pro se parties, please note that the land use calendar, if it is handled like other short calendars, will not be physically printed and mailed to the counsel and pro se parties. You will need to use the docket number of the appeal sent to you by the clerk's office to look up your appeal and see if the land use calendar appears as an event in your case. You should start looking at the case detail on the judicial website regularly after about 25 days after the return date on your appeal.
Attendance at the first appearance of the appeal on the land use calendar is mandatory. The appeal will continue to appear on the calendar until the appeal is disposed of. Counsel and pro se parties will not need to appear at subsequent listings on the land use calendar unless they receive a notice from the clerk's office.
The business to be accomplished when appearing in court is the setting of a scheduling order in the appeal. A pretrial conference will be scheduled within 30 days. Pro se parties, at the conference the judge will determine from the presentations which are made in chambers and not on the record in the courtroom: whether the appeal is on a settlement track, whether any issues are be narrowed or eliminated, or whether the appeal will proceed as filed by the appellant. The effectiveness of the conference often turns on how hands-on the judge is who is conducting the conference. Of course, it is also imperative that counsel for the parties are fully aware of the positions of the parties from the proceedings before the agencies. If there is another application pending that would render the current appeal moot, this would be the occasion to seek a stay of the current appeal to allow the subsequent application sufficient time to be acted upon.
If there is neither a potential settlement nor a subsequent application on the horizon, the scheduling order will be set. Indeed, the scheduling order can be set taking those two possibilities into account. In any event, the order will establish a time for the agency's filing of the administrative record in court, the filing of briefs by the parties and the hearing on the appeal. The judicial branch in conjunction with the Connecticut Bar Association's Planning & Zoning Section (which includes other municipal programs including the inland wetlands agency actions) is developing a policy on the electronic filing of the record to be implemented in the future. Stay tuned for updates.
All motions or pleadings, such as motions for extensions of time, motions to expunge items from the record or supplement the record, motions to dismiss or motions to settle the appeal will be assigned to the land use calendar. The counsel and pro se parties are instructed to ignore short calendars on which any of these motions appear -- these motions/pleadings will be handled solely by the judge handling the land use calendar. In some judicial districts which are efficient in placing matters on the weekly short calendars, this will slow down the handling of an appeal. But, I'm thinking of one judicial district in particular, where a monthly calendar will represent a great improvement on the handling of a motion or the scheduling of a hearing before the judge in a land use appeal.
The benefit of a uniform policy is that counsel who appear in many courthouses don't have to remember which judicial district is the one that doesn't list wetlands appeals with other land use appeals (Hartford) or which districts don't have a land use calendar at all (Bridgeport, Middletown) or which district has a land use calendar but it is only convened annually (Waterbury). Just try to remember which procedure works best where. A uniform policy, for that matter a written policy, assists the lawyer who is handling a land use appeal for the first time, a lawyer who is handling a land use appeal in a given judicial district for the first time and every single pro se party every time.
The drawback of the policy is for those judicial districts which efficiently handled their land use appeals all along without the need for establishing and convening a monthly land use calendar. The Middletown judicial district comes to mind. Even in an appeal where the appellant papered the file, i.e., filed motion after motion, motion to correct the record, motion to take depositions, motion to supplement the record, motion to allow interrogatories, the court denied each one expeditiously without parties showing up to argue any of them. The only time counsel had to appear was to argue the appeal before the judge.
This policy requires everyone to show up for the establishment of a scheduling order -- even if a party has no objection and even if the parties agree to a routine order (30 days for the filing of the administrative record, 30 days for the appellant's brief and 30 days for the appellee's brief.) Apparently motions will be scheduled to be argued on the land use calendar. Most motions on the short calendar aren't subject to argument. I don't look forward to having to appear to argue whether a motion for extension should be granted, even if I have filed an objection to it.
As a land use attorney, I appreciate the structure that a land use calendar brings, especially to those judicial districts which have none for their land use appeals and especially when there are disputes between the parties on procedure or substance. But I'm also an environmental attorney. The carbon footprint of our practice should cause us to examine unnecessary trips to the courthouse.
In the land of steady habits, change comes slowly.
Each judicial district will create and maintain a land use appeals calendar which will be held monthly, presumably like other short calendars, though not necessarily, on a Monday. Within 30 to 60 days of the return date on a land use appeal, the appeal will appear on the judicial district's land use calendar. All counsel and pro se parties must appear in court on the date and time printed on the calendar.
Pro se parties, please note that the land use calendar, if it is handled like other short calendars, will not be physically printed and mailed to the counsel and pro se parties. You will need to use the docket number of the appeal sent to you by the clerk's office to look up your appeal and see if the land use calendar appears as an event in your case. You should start looking at the case detail on the judicial website regularly after about 25 days after the return date on your appeal.
Attendance at the first appearance of the appeal on the land use calendar is mandatory. The appeal will continue to appear on the calendar until the appeal is disposed of. Counsel and pro se parties will not need to appear at subsequent listings on the land use calendar unless they receive a notice from the clerk's office.
The business to be accomplished when appearing in court is the setting of a scheduling order in the appeal. A pretrial conference will be scheduled within 30 days. Pro se parties, at the conference the judge will determine from the presentations which are made in chambers and not on the record in the courtroom: whether the appeal is on a settlement track, whether any issues are be narrowed or eliminated, or whether the appeal will proceed as filed by the appellant. The effectiveness of the conference often turns on how hands-on the judge is who is conducting the conference. Of course, it is also imperative that counsel for the parties are fully aware of the positions of the parties from the proceedings before the agencies. If there is another application pending that would render the current appeal moot, this would be the occasion to seek a stay of the current appeal to allow the subsequent application sufficient time to be acted upon.
If there is neither a potential settlement nor a subsequent application on the horizon, the scheduling order will be set. Indeed, the scheduling order can be set taking those two possibilities into account. In any event, the order will establish a time for the agency's filing of the administrative record in court, the filing of briefs by the parties and the hearing on the appeal. The judicial branch in conjunction with the Connecticut Bar Association's Planning & Zoning Section (which includes other municipal programs including the inland wetlands agency actions) is developing a policy on the electronic filing of the record to be implemented in the future. Stay tuned for updates.
All motions or pleadings, such as motions for extensions of time, motions to expunge items from the record or supplement the record, motions to dismiss or motions to settle the appeal will be assigned to the land use calendar. The counsel and pro se parties are instructed to ignore short calendars on which any of these motions appear -- these motions/pleadings will be handled solely by the judge handling the land use calendar. In some judicial districts which are efficient in placing matters on the weekly short calendars, this will slow down the handling of an appeal. But, I'm thinking of one judicial district in particular, where a monthly calendar will represent a great improvement on the handling of a motion or the scheduling of a hearing before the judge in a land use appeal.
The benefit of a uniform policy is that counsel who appear in many courthouses don't have to remember which judicial district is the one that doesn't list wetlands appeals with other land use appeals (Hartford) or which districts don't have a land use calendar at all (Bridgeport, Middletown) or which district has a land use calendar but it is only convened annually (Waterbury). Just try to remember which procedure works best where. A uniform policy, for that matter a written policy, assists the lawyer who is handling a land use appeal for the first time, a lawyer who is handling a land use appeal in a given judicial district for the first time and every single pro se party every time.
The drawback of the policy is for those judicial districts which efficiently handled their land use appeals all along without the need for establishing and convening a monthly land use calendar. The Middletown judicial district comes to mind. Even in an appeal where the appellant papered the file, i.e., filed motion after motion, motion to correct the record, motion to take depositions, motion to supplement the record, motion to allow interrogatories, the court denied each one expeditiously without parties showing up to argue any of them. The only time counsel had to appear was to argue the appeal before the judge.
This policy requires everyone to show up for the establishment of a scheduling order -- even if a party has no objection and even if the parties agree to a routine order (30 days for the filing of the administrative record, 30 days for the appellant's brief and 30 days for the appellee's brief.) Apparently motions will be scheduled to be argued on the land use calendar. Most motions on the short calendar aren't subject to argument. I don't look forward to having to appear to argue whether a motion for extension should be granted, even if I have filed an objection to it.
As a land use attorney, I appreciate the structure that a land use calendar brings, especially to those judicial districts which have none for their land use appeals and especially when there are disputes between the parties on procedure or substance. But I'm also an environmental attorney. The carbon footprint of our practice should cause us to examine unnecessary trips to the courthouse.
In the land of steady habits, change comes slowly.
Thursday, March 25, 2010
Legislative proposal to increase protection of natural vegetation around wetlands and watercourses: Raised Bill No. 123
The Environment Committee voted out of committee, March 15th, on a 26 to 3 vote, with 2 members absent, a substitute bill for Raised Bill No. 123, An Act Concerning Preserving Natural Vegetation Near Wetlands and Watercourses. On March 8th the committee held a public hearing on the bill. The legislature proposed language which the environmental groups didn't comment on because they have been busy refining language of their own which they expected to be substituted for the language in Raised Bill No. 123. But many who weren't aware of that commented on the text as found on the General Assembly's website. As a result, reading the written comments to the public hearing is like watching boats passing in the night.
The legislature's version: The bill's focal point is the protection of natural vegetation from "destruction" within 100 feet of a wetlands or watercourse or within the upland review area [URA] where the URA is less than 100 feet. The bill defines natural vegetation as "naturally occurring shrubs, trees or other plants, but does not include lawns or manicured grass areas." Everyone agrees that definition includes invasive species. The bill further states that a wetlands agency shall allow the "removal" of natural vegetation if (1) the applicant demonstrates the removal not likely to impact or affect the physical characteristics of the wetlands or watercourse and (2) there is no feasible or prudent alternative to the removal. Evidently, one would have to make that showing to remove invasive species.
The exemption to this "natural vegetation" provision is for activities that are "ancillary to existing residential uses" such as "the construction of structures such as decks, outbuildings, fences or walkways."
However, the activities set forth "as of right," otherwise known as the exemptions under the wetlands act, are not exempt from this natural vegetation provision. Thus, farming activities and water company activities, exempt under General Statutes § 22a-40, must comply with the permitting process for the destruction of natural vegetation. This bill also tinkers with the farming exemption, in general, by including a reference to the statutory definition of farming contained in General Statutes § 1-1, but omitting the reference in the farming exemption to "harvesting of crops." No one addressed the reason or need for eliminating "harvesting of crops" from exempt activities. Is there one?
The environmental groups' version: This proposed language is appended to CFE's comments and is joined in by the Sierra Club, The Nature Conservancy, the Connecticut River Watershed Council and Rivers Alliance. The groups' version uses the same definition of "natural vegetation." As CFE explains, the groups' version " directs local inland wetland agencies to preserve vegetation on any unimproved lot in the first 100 feet around wetlands and watercourses unless the applicant can demonstrate that there would be no adverse impact to the wetland or watercourse." For improved lots the groups' version gives discretion to preserve/replant natural vegetation in the first 100 feet "to the extent practical."
Unlike the text of the Raised Bill, the groups' version continues in effect the existing statutory exemptions and affords those same activities to be exempt from the natural vegetation provision. Also, it strengthens the statutory exemptions. The groups' version inserts language explicitly extending the exemption to those activities that occur in the upland review area ("area around wetlands and watercourses").
The groups' version also includes a provision that the agency may charge a fee to cover the costs of the agency hiring experts. It spells out a mechanism for the agency to issue an estimate to the applicant. If any of the estimate remains unused, it is returned to the applicant. This language tracks the DEP language in the 2006 version of the Model Regulations. By providing the language in the statute, the environmental groups were intending to bypass the need for individual agencies to adopt such a regulation.
CFE's comments identify that the purpose of this bill is in "furthering the protection of Connecticut's water quality and mitigating the harms of flooding and erosion." The DEP Commissioner, Amey Marrella, testified that the law as currently written authorizes agencies to exercise their discretion on a case-by-case basis as circumstances dictate. DEP does not support a mandate that narrows the authority to allow removal of vegetation. DEP also opposes the erosion of the statutory exemptions, by requiring exempt activities to nonetheless comply with the mandate regarding removal of vegetation. DEP would support the bill if it eliminates the changes to the exemptions and the mandatory language be made permissive.
While the DEP commissioner testified that agencies already have the authority to regulate the removal of vegetation, in contrast the Connecticut Council of Municipalities testified that the bill would expand the jurisdiction of agencies without evidence of the need to do so. The Connecticut Marine Trades Association characterized the bill as granting "excessive authority" to wetlands agencies. The Home Builders Association of Connecticut believe the bill "unnecessarily expands the jurisdiction" of wetlands agencies.
The land use attorneys from Shipman and Goodwin submitted testimony supporting the Commissioner's proposition that wetlands agencies already are authorized to regulate the removal of vegetation. With a little bit of high school math and some practical knowledge they point out that a wetland the size of a pin generates 3/4 acre of area which would be under the mandate of no removal of vegetation unless the specified conditions are met. Do the math: area of a circle = pr2 (3.14 x 100 x 100 = 31,400 [1 acre = 43,560 square feet] or 72% of an acre.)
The legislature's Raised Bill threatens the exempt community's status and brought out strong opposition from the Connecticut Water Works Association, the Connecticut Professional Timber Producers Association, an entrepreneur in the forest product industry and the Connecticut Farm Bureau Association.
CACIWC (the CT Assn of Conservation and Inland Wetlands Commissions) wrote in support of the concept of protection of vegetated buffers but because there were different versions circulating among various stakeholders recommended that an advisory committee representing the varying interest groups review any language before the bill goes further.
What the Environment Committee did: The committee voted out of committee an amendment which makes the bill permissive instead of mandatory. By their action the legislators displeased: (1) the environmental groups who supported a different version of the bill, (2) those business interests opposing the bill, (3) the groups whose activities are covered by the statutory exemption but not in this bill, (4) CACIWC which wished an inclusive process and (5) the Commissioner of DEP who set out the three conditions under which she could support it.
Did the Environment Committee manage to alienate everyone at once? Astonishing. Perhaps this bill will go the way of many other bills during a short legislative session.
May it wither on the vine.
The legislature's version: The bill's focal point is the protection of natural vegetation from "destruction" within 100 feet of a wetlands or watercourse or within the upland review area [URA] where the URA is less than 100 feet. The bill defines natural vegetation as "naturally occurring shrubs, trees or other plants, but does not include lawns or manicured grass areas." Everyone agrees that definition includes invasive species. The bill further states that a wetlands agency shall allow the "removal" of natural vegetation if (1) the applicant demonstrates the removal not likely to impact or affect the physical characteristics of the wetlands or watercourse and (2) there is no feasible or prudent alternative to the removal. Evidently, one would have to make that showing to remove invasive species.
The exemption to this "natural vegetation" provision is for activities that are "ancillary to existing residential uses" such as "the construction of structures such as decks, outbuildings, fences or walkways."
However, the activities set forth "as of right," otherwise known as the exemptions under the wetlands act, are not exempt from this natural vegetation provision. Thus, farming activities and water company activities, exempt under General Statutes § 22a-40, must comply with the permitting process for the destruction of natural vegetation. This bill also tinkers with the farming exemption, in general, by including a reference to the statutory definition of farming contained in General Statutes § 1-1, but omitting the reference in the farming exemption to "harvesting of crops." No one addressed the reason or need for eliminating "harvesting of crops" from exempt activities. Is there one?
The environmental groups' version: This proposed language is appended to CFE's comments and is joined in by the Sierra Club, The Nature Conservancy, the Connecticut River Watershed Council and Rivers Alliance. The groups' version uses the same definition of "natural vegetation." As CFE explains, the groups' version " directs local inland wetland agencies to preserve vegetation on any unimproved lot in the first 100 feet around wetlands and watercourses unless the applicant can demonstrate that there would be no adverse impact to the wetland or watercourse." For improved lots the groups' version gives discretion to preserve/replant natural vegetation in the first 100 feet "to the extent practical."
Unlike the text of the Raised Bill, the groups' version continues in effect the existing statutory exemptions and affords those same activities to be exempt from the natural vegetation provision. Also, it strengthens the statutory exemptions. The groups' version inserts language explicitly extending the exemption to those activities that occur in the upland review area ("area around wetlands and watercourses").
The groups' version also includes a provision that the agency may charge a fee to cover the costs of the agency hiring experts. It spells out a mechanism for the agency to issue an estimate to the applicant. If any of the estimate remains unused, it is returned to the applicant. This language tracks the DEP language in the 2006 version of the Model Regulations. By providing the language in the statute, the environmental groups were intending to bypass the need for individual agencies to adopt such a regulation.
CFE's comments identify that the purpose of this bill is in "furthering the protection of Connecticut's water quality and mitigating the harms of flooding and erosion." The DEP Commissioner, Amey Marrella, testified that the law as currently written authorizes agencies to exercise their discretion on a case-by-case basis as circumstances dictate. DEP does not support a mandate that narrows the authority to allow removal of vegetation. DEP also opposes the erosion of the statutory exemptions, by requiring exempt activities to nonetheless comply with the mandate regarding removal of vegetation. DEP would support the bill if it eliminates the changes to the exemptions and the mandatory language be made permissive.
While the DEP commissioner testified that agencies already have the authority to regulate the removal of vegetation, in contrast the Connecticut Council of Municipalities testified that the bill would expand the jurisdiction of agencies without evidence of the need to do so. The Connecticut Marine Trades Association characterized the bill as granting "excessive authority" to wetlands agencies. The Home Builders Association of Connecticut believe the bill "unnecessarily expands the jurisdiction" of wetlands agencies.
The land use attorneys from Shipman and Goodwin submitted testimony supporting the Commissioner's proposition that wetlands agencies already are authorized to regulate the removal of vegetation. With a little bit of high school math and some practical knowledge they point out that a wetland the size of a pin generates 3/4 acre of area which would be under the mandate of no removal of vegetation unless the specified conditions are met. Do the math: area of a circle = pr2 (3.14 x 100 x 100 = 31,400 [1 acre = 43,560 square feet] or 72% of an acre.)
The legislature's Raised Bill threatens the exempt community's status and brought out strong opposition from the Connecticut Water Works Association, the Connecticut Professional Timber Producers Association, an entrepreneur in the forest product industry and the Connecticut Farm Bureau Association.
CACIWC (the CT Assn of Conservation and Inland Wetlands Commissions) wrote in support of the concept of protection of vegetated buffers but because there were different versions circulating among various stakeholders recommended that an advisory committee representing the varying interest groups review any language before the bill goes further.
What the Environment Committee did: The committee voted out of committee an amendment which makes the bill permissive instead of mandatory. By their action the legislators displeased: (1) the environmental groups who supported a different version of the bill, (2) those business interests opposing the bill, (3) the groups whose activities are covered by the statutory exemption but not in this bill, (4) CACIWC which wished an inclusive process and (5) the Commissioner of DEP who set out the three conditions under which she could support it.
Did the Environment Committee manage to alienate everyone at once? Astonishing. Perhaps this bill will go the way of many other bills during a short legislative session.
May it wither on the vine.
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