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.