Minutes of the August 23, 2006 meeting of the Council on Environmental Quality, held in the Holcombe Room, 5th Floor, 79 Elm Street, Hartford.

PRESENT:  Thomas Harrison (Chairman), John Mandyck, Susan Mendenhall, Richard Sherman, Barbara Wagner, Wesley Winterbottom, Karl Wagener (Executive Director), Stephanie Cangiano (intern).

GUESTS:  Betsey Wingfield, Chief, Bureau of Water Protection and Land Reuse, and Steven Tessitore, Supervising Environmental Analyst, Wetlands Management, Inland Water Resources Division, Department of Environmental Protection.

Harrison convened the meeting at 9:07 AM and determined that a quorum was present. 

Winterbottom made a motion to approve the July 26, 2006 minutes.  Second by Wagner.  Approved unanimously, with Sherman and Mendenhall abstaining for the reason that they had not been present.

Executive Director’s Report

Wagener noted that Stephanie Cangiano had completed her internship, and that her diligent research produced several very useful products.  Harrison made a motion to send a letter to her to acknowledge and thank her for her excellent contributions. Second by Sherman.  Approved unanimously. 

Discussion of Inland Wetlands Issues

Chairman Harrison explained the reasons for the Council’s ongoing review of inland wetlands issues, and said he was pleased that the DEP was present to help it gather facts.  He introduced Betsey Wingfield and Steve Tessitore of the DEP.  Wingfield explained the DEP’s reorganization which put her in charge of the bureau that now includes the inland wetlands program.  She said the DEP’s challenge is to get the most out of available resources toward the goal of obtaining the best technical decisions. 

Harrison read the questions that had been given to the DEP in advance, and Wingfield and Tessitore responded, with some questions and answers after each one.  Highlights of this discussion include:

Q: The most frequent comment heard by the Council is that volunteer commissions are unable to match the resources of applicants.  Applicants put detailed information on the record, and when there is no other technical information presented, the approvals are inevitable.  At one time, the DEP provided technical assistance to towns on complicated applications.  At present, the DEP recommends to towns that they amend their regulations to enable them to charge application fees sufficient to cover the towns' costs of hiring its own consultants for technical advice.  Technical assistance is being "privatized."  Is this sufficient? 

A:  Ms. Wingfield said that the DEP staff focused on delivering good training programs and making technical information available.  It would be difficult to provide case-by-case advice to all 170 towns.  About one-third of the towns have regulations that allow them to charge application fees sufficient to cover the costs of consultants.

Sherman:  How many of the 170 towns are in great need of help; that is, facing rapid development but not wealthy enough to have much staff?

Tessitore:  Many towns in southeastern CT fall into that category, and maybe some in the northeast.  [Later] The DEP will be having more training sessions in those areas. 

Harrison: Would technical assistance be a priority if you got more resources from the General Assembly.

Wingfield:  Tough to answer; depends on the resources.  In general, towns should probably be self-sufficient.

Q: The Council frequently hears reports that the training programs, while excellent, are not frequent enough, and sometimes not convenient enough.  What would be the ideal size for the training program, so that more commission members completed it?  Are two staff people enough to provide training support for more than a thousand volunteer commissioners?  Should the statute be re-considered, with the goal of having fewer "scofflaw" towns that do not send any members for training?

A:  Ms. Wingfield said that the DEP makes an effort to make the programs as accessible as possible.  If you push the volunteer commission members too hard, you might not get the best results.  To provide training for individual towns would require far more resources.  The DEP would like to produce a DVD for Phase II of the training, but need to find the money.  There are perhaps as many as 2000 commission members statewide.

There were several questions about how to get towns that don’t send any members to training to participate.  Tessitore said that extra vouchers had been sent to towns that had received advisory letters. 

Winterbottom:  Is there any correlation between the towns that don’t participate and the frequency of problems? 

Tessitore: No way to know; common sense says yes, but doesn’t think there is a strong correlation.

Sherman:  Is the non-participation of some towns a big problem in the galaxy of problems?
Tessitore:  It is a big problem; training is the focus of the DEP program.

Q: The next most common comment is that towns act too frequently out of fear of lawsuits (i.e., appeals of their decisions to the Superior Court). One suggestion made to the Council is to have appeals go to the DEP. One alleged advantage would be that any costs of defending a permit in court would fall on the state, and municipal commissions would be free to make their judgments unclouded by the fear of incurring huge legal costs.  If the statutes were changed in this way, what additional amount of staff and resources would the DEP need?  Are there other ideas for removing fear of lawsuits (appeals) from the criteria towns use to make decisions?

A:  Ms. Wingfield said the fear of lawsuits will never go away.  The best protection is to implement the law in the best way.  There are about 4,500 inland wetlands decisions made annually, growing at about 12% per year.  The appeal rate is 2 to 5 percent.  The DEP get copies of all of them, and becomes a party to them (with the Attorney General) only when important policy issues are at stake.  In Massachusetts, only denials are appealed to the DEP, and that requires 30 staff at the state level.  She questioned deploying 30 people for hearing appeals; training would be a higher priority. 

Sherman:  I think the fear that people speak of is the fact that some developers can afford to file suit over a denial even if everything is done right, and some towns don’t want to face that expense.  Can you comment on the nature of the fear?

Tessitore:  This is speculative.  Some towns in highly developed areas, such as Fairfield County; deal with appeals routinely.  Can’t be sure about other towns.  It is a concern.  The DEP tells towns that they might get sued even if they do everything right, but they will win.

Sherman:  It is not always a rational reaction. Local commissions are influenced by implicit threats of lawsuits. 

Wingfield:  This needs to be addressed at the local level for all land-use commissions, not just wetlands.   Towns must support their commissions.

Mendenhall:  Southeast Connecticut is exploding with development.  Her town (Ledyard) has been to court 3 or 4 times already.  Ledyard has the new fees, but developers have legal teams, and volunteer commission members are reluctant to get into a fight.  Towns can get in over their heads quickly.

Winterbottom:  Are there other models besides the Massachusetts model for appeals?

Tessitore:  Only Connecticut and Massachusetts have the bottom-up regulatory structure.

Q:  Does the DEP hope to put more materials on its website, so that municipal commission members could have immediate access to a library of scientific, legal, and technical information? This has been suggested at CEQ public forums.

A:  Ms. Wingfield offered two items of good news.  First, the DEP intends to migrate to the more user-friendly portal site soon.  Second, a website for land-use commissions is a priority for the DEP’s Landscape Stewardship Initiative, but funds must be obtained.

Q:  This is an area of particular interest to the Council, as we receive complaints and refer them to the DEP if we find that there might be violations.  However, there are legal and budgetary limitations to the DEP's ability to respond.  Some specific questions:

            a.  Should there be staff, separate from the training staff, with specific responsibility for overseeing municipal actions and investigating complaints? 

            b.  When the DEP receives a complaint that a municipality might not be implementing the law properly, should the DEP "invite itself in" and provide guidance?

            c.  Should the statutes and/or DEP regulations be amended to provide for some sanction short of revocation of authority, as the latter is never done?  What could this sanction be?

            d.  The DEP is authorized to take enforcement action against unpermitted activities and in cases where the municipality has failed to enforce its regulations.  The former is relatively straightforward, but the latter is not as clear.  In two recent complaints, the citizens made their allegations to their town and were not satisfied with the town's response.  It is our understanding that the DEP does not conduct its own review of the substance of the complaint.  That is, if the town considered the allegation and made its decision about taking (or not taking) enforcement action, the DEP does not go in and take its own action.  Is this a correct understanding?  If correct, should any change be considered to enable the DEP to take more enforcement actions even where a municipality has declined to act "adequately"?

A:  Ms. Wingfield reiterated that the challenge the DEP faces is to use resources most effectively.  Mr. Tessitore said most complaints are from people dissatisfied with local decisions. 

Harrison:  In a hypothetical case, if the complaint is that the town is not enforcing permit conditions, what would be the Department’s response?

Tessitore:  Interview the complainant and the town.  Verify the information.  If necessary, issue an advisory letter.

Harrison:  How many complaints result in advisory letters?
Tessitore:  The office gets about 25 complaints a week.  In eleven years, they have sent five or six advisory letters.

Wagener: On the hypothetical case, if you found a problem, would you go in and straighten things out”

Tessitore:  Maybe. The priority is to get towns to take corrective actions.

Tessitore:  On the question of what kind of corrective action there could be, short of revocation, there could be probably five different models.

Harrison:  Is it easier or harder to correct someone if you have trained that person?

Tessitore:  It gets to be difficult.  It is his observation that most large organizations that have a sort of “internal affairs” division keep that function entirely separate from operating staff.

Q:  Should there be a specific goal for wetlands loss and conservation?  Regarding wetlands creation, should there be audits of created wetlands to assess their actual ecological value?  Without such audits, should we continue to put any value on the acreage statistics that are reported by the towns?

A:  Mr. Tessitore said the data received by towns is raw data.  Despite the many deficiencies and opportunities for error, the large volume of the data probably results in actual trends.

Mandyck asked about the status of the Farmington complaint.  Tessitore said the investigation was still ongoing.  He said that having a combined wetlands and zoning commission, which the DEP does not recommend, can complicate matters.

Chairman Harrison thanked the guests for their very useful information, and asked if they could stay while some members of the audience made some comments or asked questions.  They stayed after a break.  During the break, Chairman Harrison asked Wagener for an update on citizen complaints.

Citizen Complaints (Part I)

University of Connecticut (UConn) Water Supply Planning – Wagener said that the Council had received a copy of a letter from Thomas Callahan of UConn to the Naubesatuck Watershed Council, explaining the current status of water planning and the anticipated opportunities for the public to participate.  Attached to the letter was a draft Memorandum of Agreement between UConn and the Water Planning Council, which includes four state agencies.  Wagener said the Memorandum included most of the issues the CEQ had discussed:  implementation of the Fenton River study recommendations, completion of the Willimantic aquifer mapping, completion of a stream flow study in the Willimantic, and public participation.  Ms. Wingfield, who drafted the Memorandum for the DEP, said that UConn had agreed to all of the items, and she expected the Water Planning Council to take it up in September.  Members agreed that this was a positive development.

Discussion of Inland Wetlands Issues (continued)

Chairman Harrison invited members of the public to speak briefly and/or ask questions. 

Kathy Clark presented a PowerPoint presentation on Wetlands Protection in Canton (copies on file in the Council office.)  Problems included permit conditions that she said were unenforceable, using the Spring lot as a case study.  Bruce Fernandez of Farmington said he had been dismissed as an intervenor in the Farmington case, which he spoke about, because the judge did not agree that the destruction was unreasonable.  Eric Hammerling, Executive Director of the Farmington River Watershed Association, said his questions had been asked already, and urged the DEP to take advantage of the advocates in the room who would argue for more resources for the DEP, and asked the DEP how they would use an increase of 100 percent (from two staff to four).  Ms. Wingfield replied that she would have to look at the resources, but definitely more of what they do now.  Mr. Tessitore said he would give the training person an assistant, and assign one for oversight of municipalities.  Ann Letendre, representing the Connecticut Association of Conservation and Inland Wetlands Commissions, said that her organization does not know how the two DEP staff people in the wetlands section get so much done.  She said her organization will be pushing for some changes to the law, including elimination of combined zoning/wetlands commissions, reversing the effect of the Riverbend decision which put the burden of proof on the commission, and eliminate term limits for commission members that some towns have.  Also, Ms. Letendre said, she was concerned about who gets appointed to commissions in some towns.

Chairman Harrison thanked everyone, and said the Council will be continuing this review.

Citizen Complaints (Part II)

Speedboat Race – Wagener reported that he had done a little research on the approval process for the proposed boat races to be able to respond to inquiries received.  He said that the U.S. Coast Guard, which has jurisdiction, has a review process that includes environmental review and publication in the Federal Register for public comment, but that the process is sometimes shortened if there is insufficient time.  Members agreed this seemed to encourage late filings by applicants, and that applications for use of a public resource warranted opportunities for public comment.  Harrison made a motion to add this to the agenda.  Second by Winterbottom.  After some discussion, Mandyck made a motion to send a letter to the Coast Guard stating that the normal full review process is the appropriate one; such letter should be drafted by staff and circulated for quick review by the members, with the Chairman authorized to approve the final language.  Second by Wagner.  Approved unanimously.

Review of State Agency Projects

Public Health Laboratory – After considerable discussion, Harrison summarized members’ conclusions that any approval by the Office of Policy and Management (OPM) of a development project on protected open space land (in this case, state park land) should be required to pass a very strict test.  Members agreed that any state project can be argued to be necessary, so the question of feasible alternatives, as stated in the Conservation and Development Policies Plan, is critical.  Sherman said he had reservations about a site-selection process that could not find any other site.  No vote was taken, but Wagener was asked to convey the members’ conclusions and reservations to OPM when consulted.

Proposed Amendment to the State Solid Waste Management Plan – Wagener referred to the draft comments that had been distributed in advance of the meeting.  Winterbottom said that he concurred with recommending the 61% diversion rate, but that a strong case must be made for that.  Wagener said that the DEP was in the best position to make that case in the Plan itself, and some of the comments recommended adding some strengthening data.  Sherman said that the plan should consider the long-term energy picture; twenty years from now, shipping waste out of state will look worse than it does now.  Wagener said he would add those remarks to the comments.  Harrison made a motion to approve the comments, subject to the minor additions just discussed, and to authorize Wagener to present them as testimony at the public hearing that evening. Second by Winterbottom. Approved unanimously.

Discussion of New Indicators for Annual Report

Cangiano and Wagener discussed the revised energy-efficiency indicators that had been proposed and discussed in July.  They confirmed, based on their research, that residential use is now the largest consumption sector, and that electricity provides a more clear picture of trends than does oil, which fluctuates more due to weather.  Natural gas trends are very similar to electricity, he said. After considerable discussion, members agreed to add all three – residential electricity consumption, electricity consumed per unit of gross state product, and Energy Star refrigerator sales as a percent of the market – to the annual report, noting the opportunity to review them again before the next report is published. 

Harrison adjourned the meeting at 12:01. 

The meeting was recorded by CT-N.