Minutes of the January 27, 2016 meeting of the Council on Environmental Quality, held in the Holcombe Conference Room on the fifth floor of 79 Elm Street in Hartford.
PRESENT: Susan Merrow (Chair), Janet Brooks, Alicea Charamut, Lee Dunbar, Alison Hilding, Kip Kolesinskas, Peter Hearn (Environmental Analyst).
At 9:07 AM, Chair Merrow convened the meeting, noting a quorum.
Chair Merrow asked for approval of the agenda. Kolesinskas made a motion to approve the agenda which was seconded by Charamut and approved unanimously.
Chair Merrow asked for a motion to approve the minutes of December 16, 2015. Dunbar made a motion to approve the minutes. This was seconded by Charamut and approved, with Brooks abstaining because she had not attended the December meeting.
Chair Merrow said Karl Wagener, executive director, is not in attendance today due to illness.
She said that she and Wagener are scheduled to meet with the Co-Chairs of the legislature’s Environment Committee on Thursday afternoon. The purpose is to discuss the priorities of the Council for legislation in this session.
Citizen Comment Period
Chair Merrow asked if there were any persons present who wished to bring a matter before the Council, and who is not already scheduled to speak. There were none.
Executive Director’s Report
Chair Merrow said that a copy of the executive director’s report had been emailed last night to the members and printed copies were handed out prior to the meeting.
In the report Wagener made the following points:
1. Staff is making excellent progress on the annual report indicators, including the addition of several new goals. Prior to the February meeting, staff will send a link to the draft report to allow for review before the meeting.
2. The University of Connecticut (UConn) has released an environmental impact evaluation (EIE) for the South Campus Development. It involves a new planning/EIE process developed by UConn and the Office of Policy and Management (OPM). The comment period extends into March, so this can be discussed at the February meeting.
3. The Connecticut Academy of Science and Engineering (CASE) has completed its study of winter highway maintenance, including the use of road salt. It can be discussed it at a future meeting.
4. Following up on the Northeast Rail Corridor project and EIE, the CT Mirror ran an excellent article with the appropriate title, “Massive Rail Plan Leaves Connecticut Hopeful but Mystified.”
5. Senator Witkos and other legislators held a press conference to announce the introduction of a bill for a constitutional amendment to protect the state’s parks and forest lands from sale or transfer out of state ownership. The Council and its report, “Preserved but Maybe Not” were mentioned repeatedly.
Dunbar asked if the CASE study could be sent to the members before the next meeting. Hearn said he would send it.
Chair Merrow asked Hearn if staff had received any citizen complaints. Hearn responded that the complaints received since the last meeting involved the effects of blasting for mining operations and these had been summarized in comments sent to members regarding the “Digging Connecticut” report.
Discussion of Draft Recommendations for Legislation
Dunbar said there has been confusion among many about the specifics of the Council’s Forest Land Conservation proposal. He said that the uncertainty falls on 1) why there is a need for protection of land that is already under PA 490 tax treatment. 2) How it fits in with PA 490 and whether it is intended as substitute for PA 490. As he sees it, the link between the Council’s proposal and the PA 490 law is that enrollment in PA 490 is the entry threshold to participating in the program. He said that two major causes of delay in an easement transfer are the valuation assessment and the environmental assessment. Presumably a parcel enrolled in PA 490 would have established the dollar value assessment and possibly an environmental assessment when enrolled in the existing 490 program. 3) He asserted that the proposal should drop the suggestion that the donated easements could be held by the state, the town or a private entity. He said most towns and most land trusts would not want the parcels, due to potential costs associated with maintaining the easements.
Hilding asked if the property owner would be eligible for tax benefits from an easement donation. Kolesinskas stated that could be possible, provided the property has an IRS-approved appraisal. He said that many of the comments sent in response to the Council’s proposal expressed general support for the goal, but had questions regarding its specifics and how it will dovetail with existing preservation programs.
Dunbar said that the proposal can be thought of as a parking lot. Land that is enrolled in it cannot be developed or sub-divided. The owner retains all the other rights, which in the future could be donated or sold. It does not prevent further conservation. Any future sale would be subject to the easement restrictions placed on the property.
Chair Merrow said that it is a work-in-progress with the intent to provide an additional method that will help meet state preservation goals in a fashion that is easy for the donor and for the easement recipient.
Hilding said that its low-cost is a benefit to a donor, who might be land rich and cash poor. Dunbar added that he has seen estimates of $10,000 to $15,000 to execute a conservation easement in the traditional manner. He added that without the support of the state’s conservation community the proposal has no chance of success.
Brooks reminded the Council that two years ago the legislative recommendation to improve wetlands training was put on hold pending the results of the on-line training for wetlands commissions that was being launched by the Department of Environmental Protection (DEEP). She asked if there is any new information about the effectiveness of the training. Hearn said he had asked DEEP whether the convenience of online training has led to greater numbers of commissioners completing the training. He was told that there had been a slight increase. He said he would provide those numbers for her. He said that to measure the effectiveness of the online method in contrast to the prior in-person approach, it would be necessary to have had testing in both that could be compared. To his knowledge, that was not done. Kolesinskas observed that towns vary greatly in their emphasis on getting their commissioners trained.
Dunbar suggested that the wording on the website promising final legislative recommendations by February be extended to account for the fact that the Council will not be able to adopt final recommendations until well into that month. It was agreed that “spring” would be a safe wording change, even if the recommendations are adopted in February at the next meeting.
Discussion of the Draft Report on Mining and Stormwater Issues, with Comments from Invited Guests
Prior to the meeting copies of the draft report had been sent to representatives of the construction industry, mining industries, the business sector, the conservation community, DEEP and the Connecticut Siting Council. Many, including those who attended and spoke, submitted written comments. Those comments are available at the Council’s office.
Chair Merrow welcomed those who had come to speak about the Council’s draft report.
Brooks said she was recusing herself from any participation in the discussion regarding stormwater and wished to have her name removed from the draft report.
Mr. Bill Ethier, Chief Executive Officer of the Home Builders and Remodelers Association of Connecticut Inc., spoke first. He said that his association represents the home builders who are responsible for 70% of residential construction in the state. He described his own background as a land use and environmental attorney. He had submitted detailed written document with 21 points of comment on the Council’s draft report.
He said that it is incorrect to assume from a few documented cases that a larger problem exists when there are thousands of construction activities every year that proceed without incident. He said that the members of his association take it seriously if they receive a “notice of violation” (NOV) from DEEP. He said that DEEP has adequate enforcement tools, including the authority to revoke a general permit registration or order a violator of a general permit to cease and desist. DEEP does not need to have additional administrative sanctions. Because standards for turbidity are under study at the federal Environmental Protection Agency (USEPA), he urged that DEEP not forge ahead of science to establish its own. He said the recommendations, if adopted, would have a negative economic impact. He said that there is agreement regarding two of the report’s recommendations. All stormwater general permit registrations should be posted on DEEP’s website. DEEP should post inspection reports on its website. He thanked the Council for the opportunity to present the views of the association and invited questions.
Chair Merrow thanked him for taking the time to appear and clarified that the three problems cited in the draft report were not the only ones uncovered by the Council, but were the ones chosen as best illustrative of the issues.
Dunbar asked Mr. Ethier for his assessment of the effectiveness of existing stormwater controls and if his members’ performance has been affected by these controls. Mr. Ethier responded that he had been involved, along with the Connecticut Fund for the Environment, in drafting the current permit and believes it to be an improvement over its predecessor. He said he has anecdotal information there is broad compliance and presumes therefore it is effective and beneficial to the environment. He added that when problems do occur, they are addressed almost immediately. He knows that, after significant rain events, developers cancel scheduled activities to check their sites.
In response to a question from Hearn, regarding to what frequency rain event a construction site should be designed, Mr. Ethier responded that the current requirement to retain an inch of water is adequate. Hilding said that in light of more recent increases in precipitation, shouldn’t this be increased. He said that he endorsed the Council’s recommendation to incorporate the most current National Weather Service data in the Construction General Permit.
The next speaker was Melanie A. Bachman, Acting Executive Director and Staff Attorney of the Connecticut Siting Council. Ms. Bachman defended the role of the Connecticut Siting Council (CSC) at the solar farm construction site that was one of the examples cited in the Council’s “Digging Connecticut” report on mining and stormwater Issues. She said that submission of the operation and maintenance reports to the CSC would have been duplicative of what was being sent to DEEP; and would not have prevented the stormwater controls from being overwhelmed in the storm of March 30, 2014. She said the storm a significant event that was accompanied by flooding in some parts of the state. She said the stormwater controls met the design requirements of the Construction General Permit. After the storm event the CSC worked with the town to affect remediation of damage done and ordered the developer to take corrective action. In response to a question from Hearn she said that the CSC would take under advisement recommendations made by DEEP regarding staging of construction activities at sites. She added that the site plan for the site in question had called for staging, but in larger than five acre increments. In response to Kolesinskas she said that the CSC had reviewed the stormwater control plan for adequacy.
The next speaker was Don Schubert of the Connecticut Construction Industries Association Inc. Mr. Schubert thanked the Council for the opportunity to comment on the draft report. He said that, in general, he is opposed to duplicative and redundant rules. He said that DEEP already has the authorities sought for it by the Council. Unlike the Home Builders, he opposes the posting of permit registrations on the DEEP website due to the fact that highly dangerous materials can be stored at mining sites and these locations should not be made public. He objected to the suggestion of a need for a new permit process to govern mining activities. He offered suggestions regarding the design of the Draft Report. He said that it was a bad choice to try to fit mining, solar farms and archaeological review into the same report. He would have preferred to see a more rigorous analysis that focused on documentation that defined each problem and laid out the data to show the need and support the solution. He said a list of existing remedies would also be helpful. He added that the proposal to authorize cease and desist authority for DEEP could be counter-productive if it led to a cessation of activities intended to ameliorate a problem. He said his organization has a long history of working with state agencies and would be very willing to collaborate with the Council. He added that he was upset when he saw a news report, shortly after he had received the draft report, that the Council was advocating regulation of mining.
Chair Merrow thanked him very much for his comments. She added that the report he received is clearly labeled “draft” and was sent to him to elicit his thoughts prior to Council endorsement of any of the ideas put forth in it. Dunbar also thanked him for his comments. He asked if he has seen examples where corrective actions to solve a problem had been impeded by DEEP regulations. Mr. Schubert said that, in nearly every case, when a problem appears efforts are made to mitigate immediately. He said that these events are dynamic in nature and they have learned that perfection cannot be achieved in every incident.
Michael Sullivan, Deputy Commissioner of Environmental Quality at DEEP spoke next. He introduced himself by describing his long history with environmental issues. He thanked the Council for its historic work. He said he can provide initial thoughts on the draft report and will send written comments later. Though one of his goals at DEEP is to improve enforcement, he can say for certain that there will be no new projects taken on. The staff at DEEP has been reduced sharply over the last few years and replacements have not kept pace. Many retirements are anticipated and DEEP will not be able to do more with less.
He said he believes that DEEP has the authority to revoke a permit and has all the enforcement tools needed. The problem is lack of resources, which can lead to a reluctance to use the tools at hand. He said that Karl Wagener has been very good at passing along complaints and problems to DEEP for action. He agreed the Construction General Permit should incorporate the most current rainfall data available from the National Weather Service. He did not wish to comment on the suggestions to improve the archaeological review component of the Construction General Permit until he has had the opportunity to speak with the State Historic Preservation Office (SHPO). However clarification of wording in the permit can be done.
In response to a question from Dunbar regarding the legitimacy of citizen complaints, he said that technology has made complaints more reliable and easier to follow-up, due largely to the availability of cell phones and cell phone cameras. He said that the shift from individual to general permits has allowed the agency to focus on the most significant events and projects. He said there is now a need to focus on compliance.
Brooks said she had a question, not related to storm water per se, about the accretion of other issues – like protection of endangered species - into the general permit. It can be an impediment to developers and she wondered if it will remain when the general permit is renewed. He said that no additions or eliminations are anticipated. Hilding asked how inspector training can continue, given the staff attrition he described. He said the agency is at a place where it must evaluate how to accomplish its mission.
Chair Merrow thanked him for his comments. He promised to transcribe his thoughts and send them along to the Council.
Margaret Miner spoke next. She introduced herself as the executive director of the Rivers Alliance. She said that gravel mining and stormwater controls are concerns of her organization. She said that she will submit written comments later but wished to make some points now:
- At the first meeting she attended in her position, about 20% of those in attendance expressed concern about problems with sand and gravel mining.
- DEEP does not keep a database on sand and gravel operations.
- She is particularly concerned about sand and gravel operations along the Quinnebaug and Farmington Rivers.
- The Council on Environmental Quality is being unfairly criticized for not having sufficient data to support its recommendations when it had made an editorial choice to highlight a few emblematic examples of problems. If the industry need multiple examples, she can provide them with many.
- She agreed with Mr. Schubert that early input is important and said the rule goes both ways. There are many local resources like Conservation Districts that could provide useful advice to mining operators to avoid problems.
- Regulation of these facilities is fragmented and sometimes conflicting.
- Despite the often noted increase in storm intensity, DEEP has not revised its Stormwater Manual. Funds for the revision had been raised for that purpose by a nonprofit organization. In times of shortage reliance on resources outside the agency makes sense.
- Clean water is needed for the future and this will require cooperation of the municipalities with regard to wetland regulation to guarantee it.
Chair Merrow thanked Ms. Miner for her comments.
Eric Brown of the Connecticut Business and Industry Association was next to speak. He thanked the Council for the invitation to offer a critique of the draft report. He said it has two strikes against it. 1) It asks for more regulation. 2) It asks for more enforcement. He expressed the opinion that the problems described are insufficiently documented and that the actual numbers present a mixed message in that the percentages of violations are relatively small. He went through each recommendation and listed his objection. Among his points were that DEEP has adequate enforcement tools including consent orders and unilateral orders. The correct path is not the path to the court house. He said he believes that DEEP does have the authority to issue cease and desist orders to permit violators. He agreed that general permits should be short and clear, and that they have become too cumbersome and difficult to understand. He also agreed that the most recent stormwater data should be incorporated by reference into the Construction General Permit. He believes that regulation of sand and gravel operations is largely accomplished by aquifer protection regulations. He would like to see an explanation of why the current regulations are insufficient to govern construction of solar farms. He believes that any burdens beyond due diligence with regard to archaeology and endangered species is unfair and is concerned about “regulatory creep”. He said he would like to be involved in further discussions by the Council regarding these concepts. Chair Merrow thanked him for his input.
Chair Merrow noticed in the audience Mr. Timothy Hollister, an attorney for the Tilcon company. He had submitted written comments, but was not on the speaker’s list. She asked him if he would like to add anything to the comments that had been made. He had not prepared any oral comments, but made the point that it is important to understand that the stormwater permits are the work product of many highly expert professionals. He said that there are environmental dangers consequent of overdesign of stormwater controls, just as there are dangers from under-design. He said that the professionals who design the stormwater management plans are conscientious because a failure reduces the likelihood that they will be hired again. Fear motivates good performance. Hilding asked how increased storm volumes can be addressed. He said he is only cautioning about the tendency to push for overdesign of stormwater controls.
Chair Merrow thanked all who attended for their comments and said the Council would give them serious consideration before drafting a final report.
Hearn said that before moving on to the next agenda item he would like to mention that among the written comments received was a book by John W. Deering on land use, development, and construction methods. He said it is written to be easily understood and amounts to a “how to” guide for avoiding environmental damage during construction. Brooks asked if it is for sale. Hearn said he would inquire of the author as to how to obtain copies.
Review of Annual Report Topics
Hearn reported that about 30% of the report is complete and links will be sent to the members for review prior to the next meeting. He said that there were some indicators that have new or revised state goals. These include beach closings, approved harvestable shellfish beds, and hypoxia.
Review of State Agency Actions
Hearn said there are no Siting Council solicitations to be considered.
Dunbar pointed out that the legislative recommendations need to get to the legislature in the next thirty days to be of any value. Conversation turned to the recommendations. Kolesinskas said the 490 Forever proposal need re-wording. Chair Merrow said that with the Council’s permission she will be meeting with the Co-Chairs of the legislature’s Environment Committee and will present the proposal as a work-in-progress, and will bring back their thoughts.
She asked if the Council is satisfied with the recommendation that there be a constitutional amendment to protect state lands. Kolesinkas said the wording refers to “preserved lands”, which is the public’s perception; but that is not the case, or there would not be a need for the amendment. It was agreed that wording like “assumed to be protected” would be a better description to use.
Conversation turned to the proposed “Green Fund”, a 1% town conveyance fee that could be levied on the value of properties in excess of $150,000 that could be used for conservation purposes. Chair Merrow said that the legislature can be reluctant to give up taxing authority. Kolesinkas noted that this authority exists in other states. Further discussion of the idea was postponed until the next meeting.
Dunbar said that no state agency meets every legislative directive due to resource constraints. In times of scarcity it will become important to assure that if things are to be neglected the right things are being neglected.
Hilding said that she is also a member of the Commission on Children and that it receives funds from outside sources. She asked if such is possible for the Council. Brooks said that it would have to be in the Council’s enabling legislation Hearn said he did not believe there is such authority.
Hilding said she had been told that the proposed Northeast Rail Corridor will take farmland by eminent domain. Hearn said that it is a Tier One Environmental Impact Assessment for three possible routes. As such it is short on specifics and is intended to elicit initial responses to the concepts presented. One of the proposals did involve the taking of land, but the routing maps are so broad that it is virtually impossible to determine which specific parcels might be affected. It was agreed to discuss this at the next meeting.
There being no further business, Chair Merrow asked for an adjournment motion, which was made by Dunbar. Charamut seconded and the meeting adjourned at 11:57 AM.