Proposed legislation: Enhancements to the Wetlands Act

This is the third legislative session that a bill has been proposed to "enhance" the Inland Wetlands & Watercourses Act. Raised Bill No. 205, An Act Concerning Enhancements to the Inland Wetlands and Watercourses Act, in this iteration, proposes to the amend the legislative finding in the opening section of the act and to articulate what kind of evidence shall be considered by wetlands agencies. The statement of purpose omits any reference to the change in declaration of policy and characterizes this bill as "augment[ing] the scope of evidence considered."

Here's what's being proposed to increase wetlands agencies consideration of evidence: "all evidence brought before such agency or its agent by any person or entity . . . including . . . scientific evidence, expert opinion, direct observations made regarding the proposed regulated activity, environmental reviews, policy letters or guidance documents . . ." Putting aside the policy letters and guidance documents (which is maybe what should happen with those items), haven't agencies been considering precisely that for decades? Nothing new about considering scientific evidence. Ditto for expert opinions and direct observations.

I don't know what is meant by "policy letter." Is that something that should be of uniform applicability but hasn't been adopted as a regulation that a process that would put everyone on notice that it is in effect? The Connecticut Supreme Court seems to have relied on the DEP guidance document on upland review areas when issuing its decision in Queach v. Inland Wetlands Commission, 258 Conn. 178 (2001). But does that mean that a DEP guidance document on a subject not particularly related to wetlands protection, say on PCBs (if one exists) should be considered without "connecting the dots" -- that is, without an explanation of how PCBs harm wetlands?

I wonder if this is an attempt to erode the Connecticut Supreme Court's pronouncements that there be actual adverse impact to the wetlands or watercourses in order for an agency denial to be legally sufficient. Or is this meant to blur the line between meetings, at which the public observes but does not participate, and public hearings where the public participates? If the statute is amended to read that the agency shall consider all evidence "brought before such agency or its agent" doesn't it still depend on whether the agency decided to hold a public hearing?

What is overlooked in the bill's statement of purpose is the change to the legislative finding. The act currently speaks of the need to adopt a process to keep the state from the "random" use of wetlands and watercourses. The wetlands act does that by "providing an orderly process to balance the need for economic growth . . . with the need to protect [the] environment." § 22a-36. This proposal adopts the preservation language already present in the tidal wetlands statute by adding to the end of the legislative finding the following text: "It is the public policy of the state to preserve and to prevent the despoliation and destruction of the inland wetlands and watercourses of the state." This change would not likely affect the month-to-month operations of wetlands agencies. The value would be when the courts interpret the law. In fact, as noted before, the Supreme Court has already relied on the finding in the tidal wetlands act when construing the inland wetlands act.

Time will tell whether this year's short session will adopt these enhancements.