It all started
last June when I received an email with a link to some “over-the-top” wetlands
regulations establishing vegetated buffers. (You can only mow your lawn once a
season and that is only if it was a “formal lawn” as of the effective date of
the regulation.) I was asked if I knew about these municipal wetlands
regulations. Indeed I didn’t . Although I had worked with a loose consortium
of environmental interests for three legislative sessions on wording for a bill
to protect vegetated buffers in the wetlands law, I don’t think any of us knew
that some wetlands commissions had already adopted regulations. I sent out the link to two attorneys, one who
might have had a hand in guiding the regulations (Attorney Mark Branse swears
he didn’t) and one in the attorney general’s office who may have sniffed around
these regulations either from DEEP or from reviewing all appeals filed in
superior court of municipal wetlands agency decisions (AAG David Wrinn swears
similar to Mark Branse, at least in this regard).
I began to wonder how many other
towns had vegetated buffer or other anomalies in their regulations, which are
not found in the 2006 versions of the model regulations developed by DEEP. In a state of home rule that means 169
varieties of municipal wetlands regulations.
There is an entity to “exercise general supervision of the
administration and enforcement” of the wetlands act, CGS § 22a-39 (a), and to “develop
comprehensive programs in furtherance of the purposes” of the act, CGS § 22a-39
(b), and to “advise, consult and cooperate with other agencies . . .”, CGS §
22a-39 (c), and to “encourage, participate in or conduct studies, investigations,
research and demonstrations, and collect and disseminate information, relating
to the purposes of” the act, CGS § 22a-39 (d) -- it’s not a private
citizen. The Commissioner of DEEP has
those duties and more.
Municipal agencies are required to
send a copy of the public notice of proposed amendments to municipal
regulations to DEEP at least 35 days prior to the scheduled public
hearing. CGS § 22a-42a (b). True, the wetlands act doesn’t explicitly require DEEP to do anything
with those regulations. And indeed they
don’t . . . do . . . anything . . . with proposed regulations. This is not a recent behavioral change. At some point, maybe in 2000, I read a memo
from the DEP Inland Water Resources Division that DEP would no longer continue
reviewing proposed municipal regulations as they were sent to DEP due to staff
constraints. At the time I was in the
Attorney General’s Office working on wetlands issues; I approached as many DEP
staff as possible to reverse that decision.
To no avail.
During the summer of 2013 I
continued to wonder about the variability (read: legality) of the permutations
found within municipal wetlands regulations.
Those musings lay unexplored just like the grass growing in that formal
lawn in that municipally-established vegetated buffer not yet ripe for its
once-a-season cutting.
I set off on my odyssey in
September 2013 in which I began looking at the municipal regulations of a “few”
municipalities which turned into an obsession and ultimately to a systematic
examination of the municipal regulations of 95% of all towns. I compiled and analyzed the definitions of “regulated
activity” and the concepts, if they existed in the regulations, of upland
review area, vernal pools and vegetated buffers.
Next: methodology
