Minutes of the November 20, 2013 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, Karyl Lee Hall, Alison Hilding, Michael Klemens, Richard Sherman, Karl Wagener (Executive Director), Peter Hearn (Environmental Analyst), Linnea Gotberg (Intern).

Guests:  Rob Hust (Assistant Director), Chris Bellucci (Supervising Environmental Analyst), Mary Becker (Senior Environmental Analyst), Planning and Standards Division, Bureau of Water Protection and Land Reuse, Department of Energy and Environmental Protection.

At 9:08 AM, Chair Merrow called the meeting to order, noting the presence of a quorum.

Chair Merrow asked if there were any additions to the agenda. Brooks said she would like to add discussion of the Governor’s order to agencies to identify obsolete regulations. Chair Merrow asked for a motion to adopt the agenda as amended; motion was made by Klemens, seconded by Brooks and approved unanimously.

Brooks made a motion to approve the minutes of the October 23,, 2013 meeting. It was seconded by Hall and approved unanimously.

Chair’s Report

Merrow said that in consideration of the long agenda and many guests who had come to speak, she would forego a Chair’s report. She invited the representatives from the Department of Energy and Environmental Protection (DEEP) to speak. They had been invited to explain the stream classification and mapping system that was being deployed in eastern Connecticut and was currently open for public comment.

Connecticut’s Stream Flow Regulations:  the Classification of Streams

Robert Hust, Assistant Director of DEEP’s Planning and Standards Division Bureau of Water Protection and Land Reuse introduced himself and his two associates, Supervising Environmental Analyst Chris Bellucci and Senior Environmental Analyst Mary Becker. Mr. Bellucci and Ms. Becker used a PowerPoint presentation and a handout to show how the stream flow regulations were developed. They explained that the four classification categories were from the regulations. Eighteen factors are considered in adoption of a classification. Some “certainty factors” that are enumerated in the regulations automatically determine a stream’s designation. A stream cannot, for example, be classified as a Class 1 stream if it is designated for drinking water (i.e. it is a reservoir, it traverses a Level A aquifer protection area, or there has been significant public investment in planning for it to be used as a drinking water source). Other factors that could prevent a Class 1 designation include environmental stressors, impervious cover, dams, diversions, return flows, future planned land uses and mandated margins of safety. Considerations that would support a Class 1 designation include a Wild and Scenic designation or a trout management area designation. He said it is important to remember that these classifications relate to water flow, not to water quality. The state has been divided into five basins for the designation process. He said that 9,000 stream segments have been completed so far. These streams are in the eastern part of the state. There is a public comment period and DEEP welcomes comment on the designations. In response to a question from Klemens, he said that although water quality and biota are not considered in the designation, stream flow can be a surrogate for stream health. Designations depend on what is believed to be natural stream flow conditions. Klemens also asked if fauna other than trout, including dusky and two-lined salamander, were used; the answer was no, and that trout data was readily available. Hilding asked about the role of stream temperature as a factor in designation. Though not used directly, Mr. Bellucci said the existence of outfalls that could raise temperature is considered, and the permit process at DEEP can mitigate those affects. Hilding asked if future climate caused changes had been considered in the designations. He said no, but the designations can be modified in the future if needed.

In response to questions from Wagener and Hilding, Mr. Bellucci said there are only 60 to 70 stream gauges statewide. Reduction in their number could be problematic. Ms. Becker said the model used to develop the designations is static and is not continually adjusted. She added that many data layers are used to determine the designations, and those layers are not updated frequently. Robert said the commissioner can revise the designations and the public can petition for a change for a segment. Klemens asked if these designations will focus development into certain areas. Ms. Becker answered that they are based on already existing conditions. Klemens wanted to know what type of public investment would be sufficient to designate a stream segment as a future water supply; Mr. Hust said land acquisition and engineering studies and other detailed work product would be needed. In answer to an inquiry from Hilding Ms. Becker explained that a sewer outfall would be a stressor that alters the natural stream flow. Mr. Hust added that the water quality of the outfall would be governed by its NPDES permit.

Chair Merrow thanked the DEEP staff for all their hard work on this project and for their willingness to come before the Council to explain it. She reminded all that this is only the first basin to be mapped. There will be four more, and continued attention to the process is warranted. If the Council wished to submit comments, this could be an agenda item for the December 18 meeting as the comment period is open through December.

Chair Merrow said that she would like to go next to item 10a on the agenda, in deference to three people who had come to the address the Council about the proposed Governor’s Station project in Windsor Locks. Members concurred. Chair Merrow stressed that although they had come to speak about the necessity of the project, the Council does not evaluate the merits of projects, only the adherence to the process required by the Connecticut Environmental Policy Act (CEPA).

Discussion of response from Department of Community and Economic Development regarding grant for development in Windsor Locks

Wagener said this project is an example of what can happen when the CEPA process is not initiated in the early stages, as was intended when it was created. He said that the mismatch between CEPA and public-private partnerships had been addressed by the Council in 2001, but this was the only one of the Council’s recommendations that was not used when CEPA was overhauled in 2001. Wagener reported on his discussions with DECD and DOT staff. In this project both the Department of Economic and Community Development (DECD) and the Department of Transportation (DOT) have a role, he said; the DOT evidently sees its role as being responsible for a traffic improvement by modification of a highway exit ramp. The DOT project will be subject to the requirements of the National Environmental Policy Act (NEPA), which might result in a categorical exclusion under NEPA, but that process had not yet been completed. In response to a question, he said a NEPA environmental assessment or environmental impact statement would satisfy CEPA requirements, while a categorical exclusion would not. The DECD is providing additional funding to cover the gap between the initial cost estimate and the larger cost estimate for the aspect of the project that will facilitate a large mixed-use development.

Three proponents of the project introduced themselves: Representative Peggy Sayers, Deputy Speaker of the House of Representatives, Steven Wawruck, First Selectman of Windsor Locks and Kevin Casey of BDL Real Estate Holdings LLC. They explained that the highway ramp improvement was needed. The current location is deemed to be the cause of 20 percent of the accidents in a DOT study of the area; in response to a question from Hilding, Mr. Wawruck said that these included two fatalities. The DECD became involved when the town sought funding to close the gap between the original cost estimate for the project and newer actual cost. They said the proposed development to the adjacent property is entirely speculative, though it would be much improved by the ramp relocation. First Selectman Wawruck said that the project has been approved by local commissions, including the Windsor Locks wetlands commission which has already approved the plan and it will not negatively affect wetlands.

Chair Merrow said that the Council is only addressing the question of the adequacy of the DECD’s response to the Council’s letter expressing its concerns about the CEPA process, as it applies to the project. Mr. Casey asked if it is normal for a CEPA study to be done for a highway ramp. Wagener said yes, in a case where there will be secondary impacts. Mr. Casey said there is a regulatory process that will address the development should it ever occur. Klemens expressed a concern about project segmentation that looks only at portions of a large project rather than the entire project.  Mr. Wawruck said the project has been in planning for eight years and this is the first time the issue of an environmental evaluation has been raised. Chair Merrow said that the only issue before the Council is the adequacy of DECD’s response regarding that question. Wagener added that the DECD will make the decision on the necessity of an environmental impact evaluation and the Councils’ role is advisory.

Representative Sayers and Mr. Wawruck made the point that the ramp improvement is needed for safety irrespective of the development, and that four development proposals have failed because of the current configuration.

After considerable discussion, Brooks made a motion to have the Chair and staff meet, if possible, with DECD and DOT together to gain a full understanding of the agencies’ responsibilities under CEPA and to discuss the Council’s understanding. Second by Hall. Klemens and Sherman said the issue of secondary impacts must be included; members concurred. The motion passed with all in favor except Klemens, who voted no because he was not clear on the ultimate outcome.

Sherman said there should be discussion at a future Council meeting of its prior recommendation regarding public-private partnerships and CEPA. Members concurred.

Discussion of staff memo: Preserved But Maybe Not   

Wagener began the discussion of the memo, which had been sent to members prior to the meeting, with a short Powerpoint presentation, noting that in the past two years there had been proposals for exchanging or conveying hundreds of acres of state land that was in parks, forests or wildlife preserves. He attributed those requests to a general perception that those lands were underutilized and had little conservation value, and to the fact that the door was always open to proposals for such transactions, even if most proposals are ultimately not successful. He showed photos of parcels that had been proposed for exchange and the contradictory statements of proponents and state government. He said the actual facts about state properties should be known in advance and should be available online to deter proposals to acquire them. He cited the example of a recent proposal for an exchange that took DEEP four months to evaluate and respond to the request. The public should not have the perception that these properties are available with the right offer. He said there are many individuals and groups exploring methods to better protect state owned land. Klemens said New York’s Adirondack Preserve has firm control with a process that requires two legislative votes and a referendum.

Wagener referred to the memo which suggested steps to curb the deficiencies. After considerable discussion, the Council decided to add the recommendations that required legislation to the draft list of legislative recommendations in order to solicit public comment at the December 5, 2013 public forum (see below). The Council also wanted to discuss the text of the memo at the December 18 meeting.

DEEP regulation and enforcement of Alternative Sewage Treatment Systems (ATS) – staff report

Linnea Gotberg began with a power point summary of her research on ATS systems. Through examination of the 44 alternative treatment systems that were operating in 2011 and 2012, she was able to determine that there was a significant frequency of violations by those systems at the point the effluent left the treatment system prior to the leaching fields. In addition, about four percent of the monitoring wells on the periphery of the leaching fields reported exceedances of the permitted limits. There were a number of facilities failing to report monitoring results to DEEP. Gotberg highlighted possible recommendations to address the deficiencies.

Hearn added that failure to report is a violation, but that reporting violations were not included in the violation count for the study, which was looking more at the environmental impact of the systems. In response to a question from Brooks, he reported that staff could find no instances of enforcement actions against facilities for violating permit limits or failing to report. He said there was one notice of violation for a “workflow” but he was uncertain if that referred to failure to report. He explained that DEEP reviews the reports when it is time for renewal and the systems must be in compliance during the permit review process. He added that failure to get a new permit does not result in a closure; it means only that the facility will operate with a “continuance”. Gotberg said the facilities comprise schools, hospitals, and residences that cannot be closed. Hall and Hilding thought shorter permit lengths for non-reporters would insure better compliance. Hearn said the number of staff doing this work has been greatly reduced and is backlogged with the existing work load; shorter permits could cause further delays unless staff is increased. Sherman suggested that failure to report should lead to a requirement to apply for a new permit, which has a higher cost than a permit renewal. Wagener said there could be a penalty attached to each absent report which could be collected when the permit comes up for renewal. Sherman suggested reporting to an outside authority if DEEP does not have the staff to monitor these systems.

Margaret Miner spoke from the audience to say the permits are written with mandated limits at the point effluent leaves the ATS, not at the end of the leaching wells. If they are not meeting those scientifically-based restrictions, it is a problem. Brooks expressed concern about the lack of enforcement and suggested towns require reports to a third party with the permittee paying for monitoring.

After discussion on how to present these finding to the public, Chair Merrow asked if a letter to the Commissioner is sufficient. The Council asked staff to post the results on the Council website and to prepare and issue a news release when the few questionable bits of data are confirmed. 

Klemens excused himself at this point to tend to a prior commitment.

Hearn announced that this was Gotberg’s last appearance, having concluded her internship. The Council enthusiastically thanked her for her work.

Discussion and approval of draft recommendations for legislation          

Members discussed a list of potential legislative recommendations that had been distributed in advance. There were questions about several items, and after considerable discussion members agreed to add all-terrain vehicle enforcement, improved cell-tower notification, statewide water planning and protection from imported hydraulic fracturing wastes to the list of draft recommendations for public comment. Wetlands training, the subject of recommendations for several years was discussed; Brooks said that she was willing to forego recommendations about this training providing Council staff examines the results of the new online education during the coming year. Staff and members concurred. Sherman noted that the deadline for adoption of the 2012 building energy code has passed but adoption has been postponed; Chair Merrow said this might not be a legislative recommendation, but is deserving of note and should be investigated. Wagener said Dunbar had sent suggestions for legislative action regarding stream flow regulations and they are in the Council’s packets; Chair Merrow suggested adding recommendations on those and ATS systems as well.

The draft recommendations were adopted by consensus, as discussed above.

Brief updates on other projects

Wagener referred to the letter from the Falls Village (Town of Canaan) Inland Wetlands and Conservation Commission thanking the Council for its work and comments on the tower proposed for Cobble Hill and noting that the applicant had dropped its appeal of the initial denial. He reported that UConn has published an Environmental Impact Evaluation for its mass accumulation area for short term storage of hazardous waste. He said he will have monitoring information to report in December about the South Meadows peak generation facility in Hartford.          

Brooks said that she would like to have a discussion of regulations that could be modified or eliminated as requested by the Governor on the agenda of the December 18 meeting. Members concurred. Wagener encouraged members with proposals to send them to him and he will distribute them in advance of the meeting; the Council asked Wagener to distribute staff suggestions as well.

Discussion of plan for December 5, 2013 public forum on draft legislation    

Chair Merrow asked Wagener to describe the proposed format of the forum; Wagener said that people sign up as they arrive, and the number signing up will determine how many minutes can be allotted to each. Each has been allotted about five minutes in the past.

Approval of 2014 Meeting Schedule

The schedule of meeting dates for 2014, which had been sent out by Wagener prior to the meeting, was approved with a motion to accept by Sherman, second by Brooks and unanimous agreement. Wagener reminded all that the start time for 2014 will be 9:30 AM.

Environmental Indicators and the Measurement of Environmental Conditions:  Reports of Project “Point People” 

Brooks reported that progress had been made on collecting data about human health indicators, but that she would postpone further report as more data were pending.    

There being no other business Hall made a motion to adjourn and the meeting was concluded at 12:02 PM.