Minutes of the March 26, 2008 meeting of the Council on Environmental Quality, held in the Holcombe Room, 79 Elm St., Hartford.
PRESENT: Thomas Harrison (Chairman), Howard Beach, Bruce Fernandez, John Mandyck, Earl W. Phillips Jr., Norman VanCor, Barbara Wagner, Wesley Winterbottom, Karl Wagener (Executive Director), Peter Hearn (Environmental Analyst).
Chairman Harrison called the meeting to order at 9:07 AM, and asked for comments and revisions to the minutes of the February 27, 2008 meeting. Fernandez asked that the minutes be revised to reflect that he had not abstained from the vote to approve the January minutes. The abstention came from Winterbottom who sat next to him and who had been absent at the January meeting. Chairman Harrison moved to accept the amended minutes. Winterbottom seconded. Phillips was absent for the vote, having not yet arrived.
Chairman Harrison reported that he had decided to run for the General Assembly for the 17th District. He said that he did not anticipate that this would interfere with his duties on the Council nor create a conflict of interest. However he urged any members who had concerns about this to express them now or at any time in the future.
Executive Director’s Report
Wagener reported that the DEP had offered the Council a seat at the inland wetlands training program, if a member thought that would be helpful to the ongoing review of wetlands programs. Fernandez volunteered for the assignment. Chairman Harrison moved that Fernandez be designated the Council’s representative. Beach seconded. The motion was approved unanimously with Fernandez abstaining.
Legislation & Budget Wagener stated that the Council’s report on the DEP budget had been sent by e-mail to all legislators and additionally by hand delivery to key members.
The bill to require a Department of Agriculture review of STEAP (Small Town Economic Assistance Program) grants that involve potential loss of agricultural lands died in committee. Representatives of agricultural groups said they supported the bill but had agreed with legislators that the language needed some work.
Wagener reported on the status of legislation pertaining to land conservation, responsible growth, recycling and the bottle bill.
Aspetuck Land Trust Decision The Superior Court in Bridgeport ruled that for a land trust to be able to claim a tax deduction for its property it must conduct educational activities on it. Wagener said Senator Roraback introduced an amendment to reverse this precedent. Fernandez moved for a vote of the Council to show approval of Roraback’s amendment. Second by VanCor. All Council members voted in favor. Phillips suggested reading the requirements of that section of the IRS code to be better informed as to what was required to be tax exempt. Wagener added that although he is a member of a land trust board he did not think there was a conflict of interest in them expressing concern about this issue.
Wagener announced that he has recused himself from any discussion or consideration of the telecommunications tower that has been proposed for the Glastonbury should it come before the Council. He said he has contacted the Office of State Ethics for a ruling on how to proceed with regard to proper delegation of the matter within the office.
Fernandez asked for an update on the press conference regarding the Council’s report on DEP funding. Wagener said that it was broadcast on CT-N and there was considerable radio coverage. There was some written press including an article in the Danbury News Times.
Five Mile River, New Canaan, Darien and Norwalk Wagener referred the Council members to correspondence the Council staff had received from residents along the Five Mile River and to the DEP’s response. This river has been flooding regularly for a number of reasons including and upland development and neglect of catch basins, leading to increased runoff. Representative Cafero and Senator Duff have introduced legislation to fund a study of the problem. Margaret Miner of the Rivers Alliance of Connecticut reported that conflicting jurisdictions and a fragmented approach to solving aspects of the problem had only made matters worse for the residents. She said she expects similar complaints from towns throughout the state with similar issues – including New Milford. Fernandez questioned whether the US Army Corps of Engineers would have some jurisdiction since they seem to have jurisdiction on streams of lesser consequence along the Farmington and Connecticut Rivers. VanCor said that in light of the DEP response and pending legislation to fund a study he doesn’t believe action is needed at this time. He has sympathy with the residents and doesn’t want inaction to be construed as being unsympathetic. Philips said that these issues always come up after the flooding event. The less glamorous aspect is prevention which may require a greater role by the DEP and that may require better funding of the DEP. Towns need to look at flood plain regulations and wetlands permits, said Philips.
State Oversight of Telecommunications Towers. Ms. Lisa Rapose from Woodstock represented Woodstock Citizens for Responsible Cell Tower Placement. She had asked to address the Council about the issue of cell tower placement because it touches on issues that go far beyond Woodstock like viewsheds, historic and cultural values and the role of the Siting council. She said that she believed that a certificate of public need should consider the size of the population served. She said she hopes the Council could be the agency that looks out for the state’s scenic resources because the Siting Council was not balancing these issues as it should. She said her organization was not against wireless facilities, but did want to see least-intrusive technologies. She pointed out that the Siting Council’s estimate of tower sites in eastern Connecticut for 2010 has been greatly exceeded already.
Frederick Riese, Senior Environmental Analyst with the Office of Environmental Review at the DEP said that the authority of the Siting Council exceeds that of local zoning authorities. The local municipality may express its beliefs about the project to the Siting Council, which must take that opinion into consideration. For it to override the municipality’s desires the vote in favor must be six of the nine Siting Council members. Phillips said he thought it best if he recuse himself from the discussion since his firm may represent some of the parties to these actions, although he is unaware of any at this time. A general discussion of topics surrounding this issue ensued. It included the definition of scenic resources, who is responsible to find alternative locations to those proposed by the siting council, the range of the towers, consideration of towers across state borders, whether cell towers met a state need or just a local need, where is the state plan for tower location and how to obtain it. Fernandez asked if “environment” is defined anywhere as a visual aesthetic. Chairman Harrison responded that it was but only with a vague reference in the state’s environmental protection act. Chairman Harrison thanked Ms. Rapose for bringing this topic before the Council. Chairman Harrison asked the Council about the next step. Wagner and Sherman said they thought this is very similar to the Black Pond question that came up at a previous meeting. Wagener recommended further investigation of the relevant definitions involved in siting. Mandyck questioned the need for siting by a state agency. Chairman Harrison said he thought it would be a good idea to invite a representative from the Siting Council to the next Council meeting. Chairman Harrison thanked Mr. Riese of the DEP for attending and providing the Council with information on the process.
Erosion and Pollution of Connecticut River in Middletown Megan Hearne of the Connecticut River Watershed Council spoke to the Council regarding the circumstances surrounding the complaint that had come to the Council regarding the Kleen Energy construction site. She showed photos and said that previous documents regarding the nature of the soils and tailing at the abandoned mine site made the situation predictable and it should have been subject to more stringent controls. Dan Dziob of Portland, who took the photographs, described his observations and also mentioned how his house had been shaken by blasting at the site.
The DEP visited the site on March 6 and a notice of violation was to be issued. Fernandez asked what was the town doing about this problem. Earl Roberts said the Connecticut Siting Council should be on top of this. Oswald Inglese, Director of the Water Permitting and Enforcement Division, Bureau of Materials Management and Compliance Assurance at the DEP said because the situation was the subject of a pending investigation, he could speak only in general terms about the permit process. He said that Connecticut uses a ten-year storm as the erosion control standard. The national standard and other states use only a two- year storm event as their standard. Zero turbidity is not generally an expected result in storms like those of the past few weeks. A ten-year storm design is reasonable since even the largest projects rarely last more than ten years. General permits can be modified to accommodate unique site conditions. The general permits are self-monitoring and if an unforeseen event occurs it requires a response by the registrant.
Margaret Miner said that there should be penalties if an applicant fails to provide adequate information about the site. Applicants should describe conditions that may require an individual permit. Beach said more can be requested of the developer on the local level. And DEP could look at the specifics of the site to determine if greater than ten-year controls should be required. Nisha Patel, P.E. Supervising Sanitary Engineer Bureau of Materials Management and Compliance Assurance, Water Permitting and Enforcement Division of the DEP said that the DEP has jurisdiction of quality of discharge not volume. Director Inglese said that the town can require volume controls. Fernandez said that there may be a need to re-visit the definition of a ten-year storm given recent meteorological history and forecasts of climate change. Chairman Harrison there two aspects to this one is fact specific and it would be worth the time of staff to inquire of Middletown regarding controls that were imposed on the site and whether the state of Connecticut owns the railroad line that abuts the property. Staff will also research the Siting Council’s role in enforcement. The other issue is the broader one of prevention of a repeat of such situations at other locations, so the council will want to stay involved with this as it unfolds. Chairman Harrison thanked all the citizens and DEP staff for explaining this situation to the Council.
Definition of Watershed Margaret Miner explained that there are many statutes and regulations regarding watersheds, but no agreed upon definition of watershed. This question was prompted by a determination by the DEP that for drinking water purposes “watershed” does not include wellfields Robert Hust, Supervising Environmental Analyst, Planning and Standards Division Bureau of Water Protection and Land Reuse at the DEP explained that there is no legislative history to support DEP taking a position that would include wells in the definition of watershed. As one example of the potential consequences, the watershed of a well in Middletown along the Connecticut River would encompass four states; Miner said that problem could be addressed. Perhaps, Hust, said, a declaratory ruling by the DEP would help.
Chairman Harrison thanked Hust, Inglese and Patel of the DEP and Ms. Miner for taking the time to attend to inform the Council about these issues, and said the Council would take them up.
Review of State Agency Actions
There were no state agency actions discussed.
Chairman Harrison adjourned the meeting at 11:50.