A new concept: rebuttable presumptions & wetlands agencies

House Bill 5068, if approved, would establish a “rebuttable presumption” regarding wetlands permit approval of a dry hydrant in lakes, ponds and streams. The need, as explained by Burlington volunteer firefighter Jeffrey Bond, is to facilitate access to water to fight fires who aren’t adept at filling out wetlands application and going through a multi-month process with municipal wetlands agencies. A dry hydrant, adds the DEP, involves the permanent installation of a non-pressurized pipe into a lake, pond or stream to provide water to fill a fire truck tank to be used in fire suppression. Senator Beth Bye, whose district includes Burlington, strongly supports this bill, but acknowledges the opposition of Conference of Connecticut Municipalities (CCM) to such a bill in 2009. The bill would “tilt the playing field” against wetlands agencies. Senator Bye believes that protecting public safety is a valid reason to do so.

Is this an example of a bill that a legislator marks “by request” for a constituent? See the previous blog entry. There’s no way for us to know, so we’ll continue to proceed as if this could indeed become enacted.

Here’s the proposed addition to the Inland Wetlands & Watercourses Act:

There shall be a rebuttable presumption for the approval of any application for the installation of a dry hydrant in wetlands and watercourses. Such presumption may be rebutted by a finding that there is a feasible and prudent alternative access to a public water supply that has a less adverse impact on wetlands and watercourses.

DEP raises a good point: if the reason is for fire control, why not say so? The bill would allow any use of a dry hydrant to enjoy the considerable benefits of semi-automatic approval. Such as irrigation of playing fields by towns/school or lawns/gardens by landscapers/homeowners.

Let’s be clear: a “rebuttable presumption” means that if somebody, other than the fire department applicant, doesn’t come up with information on the fire department’s access to a water supply, the location of the dry hydrant must be approved. The only other “somebody” in every wetlands application is the wetlands agency. As Rivers Alliance notably pointed out, this is a shift in the burden of proof. In fact, I would add, this is the first instance in the almost-40 year history of the wetlands act that the agencies would have the burden of proof in order to carry out their protective duties under the Act and the only instance of difficulty getting a permit for dry hydrants. The wetlands agency would have to investigate whether alternate water supplies exist and then evaluate whether those supplies have less adverse impact.

Why would wetlands agencies have superior knowledge of what access the fire department has to public water supplies? (Rivers Alliance points out that access to other water supplies should not be limited to public ones.)

Can’t that “burden” still be on the fire departments? Why aren’t town engineers assisting fire departments fill out these applications? If the town doesn’t support the fire department with engineering resources to go through the application process, is there more reason to believe it would support the wetlands agency with that technical support? If the agency needs to hire an expert to make that evaluation, does it pass those expenses back to the “applicant,” the fire department? Maybe the town needs to get itself together and not tinker with the wetlands act.

The opacity of the legislative process

I've been reading through, weeding through a number of legislative bills to decide which to feature in this blog. Besides the criterion of wetlands I'm looking for bills that will have legs and get somewhere. Not so easy to determine. Not just because no one can predict what bills will gain political momentum and be voted into law. The General Assembly has its own signals for which bills are "for show." Perhaps you always knew this. It was news to me when Representative Linda Gentile, co-chair of the Planning & Development Committee of the General Assembly, spoke before the attorneys in the Planning & Zoning Section of the CT Bar Association two nights ago.

The dialogue between members of the Bar section and Rep. Gentile began innocuously enough. When questioned by a land use attorney as to whether anyone screens the bills to remove the ones that solve non-existent problems (e.g., a bill to remove the requirement for public hearings with site plan approvals when no such requirement exists), she answered it with a twist: some bills are filed by legislators at the request of constituents which the legislator has no expectation will pass, and perhaps no inclination to pursue. The bill is given life, however brief, to show the legislator's attentiveness to constituent requests. But not to worry, Rep. Gentile, told us, the rest of them don't spend a lot of time on these bills. They are coded so that no one gets overly exercised. Somewhere the bill is marked "by request." That is the signal shall we say, to ignore the bill. That is, it is a signal to the legislators. I have not been able to find the "by request" designation on the Connecticut General Assembly's website which is an excellent tool for accessing the status of pending bills. She indicated another sign that a legislator is doing constituent work, meaning not pursuing the bill: when a legislator submits a letter to the chair of the committee copied to the constituent who requested it . . . a veritable kiss of death.

The problem is the public doesn't know which bills are faux bills. They are scheduled for public hearing. Why? If a legislator requests it, she explained, it is hard to turn down the request as she may be seeking the same consideration in the future. So, advocates who are truly interested in the bill may get caught up in the drama of a public hearing only to find the actors mere facades. This may only be known in retrospect, if at all.

For the next few weeks I will highlight some of the bills in which the content would bring about a change if passed. Will I be wasting your time on bills with no trajectory? Well, at least I won't be intentionally wasting your time.

Consolidating municipal wetlands agencies into districts - an idea whose time has come?

DEP has recently responded to an inquiry from a wetlands agent in Fairfield County about the legality of establishing a multi-town wetlands agency. The catalyst came in the form of a warning from the chief elected official to the agent to be well versed in the topic of consolidation, given the upcoming budget struggles. The wetlands act has provided authority for multi-town districts since its passage in 1972 with this wording in General Statutes § 22a-42 (e):

"Any municipality, pursuant to ordinance, may act through the board or commission authorized in subsection (c) of this section to join with any other municipalities in the formation of a district for the regulation of activities affect the wetlands and watercourses within such district."

. . . and no municipality has taken the opportunity to protect its resources in that way. Too difficult to figure out how to appoint fewer people to manage multi-town resources? It can't be more difficult than establishing regional schools. We don't manage our other natural resources or environmental issues on a town-by-town basis: air, hazardous waste, pesticides. Will it take the current recession to put a chink in the mote of home rule?

I'd like to envision fewer wetlands agencies in a number of consolidated districts, based on watersheds, so that there could be meaningful, consistent policy implemented across town lines. With fewer commissions there would be a need for fewer commission members. The competition would be so stiff to get on a commission that candidates would pledge to complete DEP training and reenroll for Segment II (legal updates) every year in order to be appointed. By then, DEP would have many opportunities for training webinars and DVDs, in addition to the immutable core of live training. The preapplication process would be heavily relied on and professional handled, so that applicants wouldn't waste time in lengthy, unproductive hearings, but would receive clear signals that they could plan projects around. The few municipal holdouts would be gazing, with such longing, at the successful and fiscally prudent regulation of wetlands and watercourses that they would eventually petition to join a district.

In my lifetime?

Don't miss the free webinar on vegetated riparian corridors

Thanks to the good folks at CLEAR, (the Center for Land Use Education and Research), you can participate in a free hour-long webinar on riparian corridors, next Tuesday, February 8th from 2-3pm. Here is CLEAR's description of the course from its website:

"Riparian, or streamside, corridors provide a host of environmental benefits, from erosion control and wildlife habitat to water quality protection. What is the state of riparian corridors in Connecticut, and what options are there for addressing riparian corridor protection?

This webinar will focus on a recently completed CLEAR study showing changes to 100 foot and 300 foot riparian corridor areas during the 21-year period from 1985 to 2006. We will review statewide, watershed, and town-level data, and demonstrate the use of the project website. We will also present information on the functions and values of riparian corridors of various widths, the relationship between wetlands and riparian corridors, and the need for local commissions, land trusts and other conservation groups to work together on the conservation of these critical areas."

The timing is just right to consider Senator Meyer's bill on vegetation in riparian corridors, Bill # 832, the next day when the Environment Committee of the General Assembly holds its public hearing.

Riparian corridors is the topic that will kick-off the 2011 monthly webinar series. The other topics include: affordable housing, rain gardens, google maps mashups, brownfields, global positioning systems (GPS), permeable pavements for stormwater control, farm-friendly plans and regulations, and CLEAR web tools.

Sign-up for the riparian corridor webinar on CLEAR's website by clicking here.

And if you like the ease and the format of a webinar, let DEP know that you'd like webinars to be part of its training for wetlands commission members.