Public Act 11-184: New exemption, of a sort: dry hydrants for firefighting

At the beginning of the legislative session I reported on the effort to streamline consideration under the wetlands act, of the installation of a dry hydrant for firefighting purposes. The bill as originally drafted would have infused into the statute a novel concept, as least for the wetlands act, of a "rebuttable presumption." That original language would have created a presumption that an application for a permit for the installation of a dry hydrant, for any purpose, be granted. That presumption could be rebutted upon the demonstration "that there is a feasible and prudent alternative access to a public water supply that has a less adverse impact on wetlands and watercourses. "

That language would have created a new path for undertaking a activity affecting wetlands or watercourses : 1) upon the granting of a permit where the applicant has the burden of proving it is entitled to the permit; 2) upon the agency determination that the activity is exempt from the act; and per the original draft language, 3) for dry hydrants upon the filing of an application where the applicant has no burden of proof and the agency with the burden of proof, does not rebut the application with evidence that there is a feasible and prudent alternative, a public water supply, with less impact to the wetland or watercourse.

I'm glad that the concept of a "rebuttable presumption" disappeared as the bill wended its way through the legislature. Although retaining the concept in its caption; AN ACT CREATING A REBUTTABLE PRESUMPTION FOR THE APPROVAL OF AN INLAND WETLANDS PERMIT FOR A DRY HYDRANT; Public Act 11-184 has moved on from that concept and today was delivered to the Secretary of the State. It will, presumably, be signed by the governor shortly. Once signed, the public act will go into effect October 1, 2011.

The exemption for the dry hydrant is broken into two activities, each of which is handled in separate portions of the exemption statute. The "withdrawals of water for fire emergency purposes" becomes exemption #7 in General Statutes § 22a-40 (a), which starts with the farming exemption as #1. So, before the water can be withdrawn the fire department will need to put in writing its plan to withdraw water for firefighting purposes. That seems like a straightforward determination for the wetlands agency to rule on: either the fire department is withdrawing water for fire emergency purposes and is exempt, or it is not for fire emergency purposes and the fire department needs to apply for a purpose. An agency doesn't consider the impact of the activity on the wetland or watercourse, if it is listed in subsection (a) of § 22a-40.

But the preliminary activity, installing the dry hydrant was inserted into subsection (b) of § 22a-40, where an environmental determination must be made. The subsection (b) exemptions "shall be permitted, as nonregulated uses in wetlands or watercourses provided they do not disturb the natural and indigenous character of the wetland or watercourse by removal or deposition of material, alteration or obstruction of water flow or pollution of the wetland or watercourse." The fire department will bear the burden of proof that the installation of the dry hydrant (1) does not disturb the natural and indigenous character of the watercourse by (2) removal or deposition of material, (3) alteration or obstruction of water flow, or (4) pollution of the watercourse. That is standard for any of the (b) exemptions. In addition, the installation of the dry hydrant will have to meet the additional requirements spelled out in the new (7):

The installation of a dry hydrant by or under the authority of a municipal fire department, provided such dry hydrant is only used for firefighting purposes and there is no alternative access to a public water supply. For purposes of this section, "dry hydrant" means a non-pressurized pipe system that: (A) Is readily accessible to fire department apparatus from a proximate public road, (B) provides for the withdrawal of water by suction to such fire department apparatus, and (C) is permanently installed into an existing lake, pond or stream that is a dependable source of water.

As Jonathan Schwartz commented after my previous post on this bill, the Burlington wetlands agency of which he is a long-term member hadn't denied any permit to the fire department; it just required the submission of necessary information. His concern that the original bill strips the agency's authority to protect wetlands and watercourses was addressed, even if unintentionally by the legislature, by putting the exemption into subsection (b) of § 22a-40, instead of § 22a-40 (a). Rather than exempt the installation of the dry hydrant regardless of the installation's effect on the wetlands and watercourses (which is the case for the exemptions listed in § 22a-40 (a), the wetlands agency will retain authority to examine the environmental impact. For the fire department to qualify for the exemption for the installation of the dry hydrant, it will have to supply information to establish it won't disturb the natural and indigenous character as well as the other specific elements of the exemption set forth in (7).

Public Act 11-184 clearly spells out the information that a fire department will need to provide in its request for determination of exemption and sets the scope of the agency's review.