Minutes of the September 24, 2014 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 P. Brooks, Lee E. Dunbar, Karyl Lee Hall, Alison Hilding, James O’Donnell, Richard Sherman, Karl Wagener (Executive Director), Peter Hearn  (Environmental Analyst), Jonathan Bauer (Intern)

At 9:32 AM, Chair Merrow called the meeting to order, noting that a quorum was present.

Chair Merrow asked for a motion to approve the meeting agenda.  Hall made the motion which was seconded by Brooks and approved by all.

Chair Merrow asked if there were any additions or modifications to the minutes of the August 27, 2014 Council meeting.  Dunbar said he does not believe the description of his comments regarding the impact of impervious surfaces on stream quality accurately reflect what he said. A discussion followed on the exact percentage of streams that fail to meet water quality standards and the percent of impervious cover in their watersheds. Hearn said he would revise the minutes to reflect Dunbar’s exact words. There were no other changes suggested. Brooks moved to approve the minutes with that one change. Sherman seconded. The motion was approved.

Public Comment Period

Chair Merrow asked if there was anyone present from the public who wished to address the Council. Ms. Alicea Charamut of Newington rose to speak. She identified herself as a member of the Connecticut Chapter of Trout Unlimited, who served on the subcommittee that advised the legislature on the Water Planning Council Bill in the last legislative session. She expressed her concern that the primary focus of water planning in the state is on drinking water; other uses are not receiving the appropriate priority. She said the approach needs to be more holistic, incorporating the interests of recreation too. She questioned the wisdom of having UConn, which is a water company, writing the state water plan. Sherman said that this topic will come up later on the agenda and he would like to call on Ms. Charamut and others in the audience with the same concerns at that time to offer more testimony. Chair Merrow thanked Ms. Charamut for taking the time to come to the Council with her concerns.

Chair Merrow said that the office had received an email that morning from Ms. Pat Suprenant of Mansfield who was unable to attend the meeting but requested that two specific questions be asked of Commissioner Klee. The first pertained to the decision that the University of Connecticut (UConn) would prepare environmental impact evaluations (EIEs) for individual projects instead of for the whole campus master plan. Wagener said that he would be attending a briefing on the master plan and that he would try to obtain an answer. Jason Coite, environmental compliance manager at UConn, was in the audience and explained that the university had been advised by the Office of Policy and Management (OPM) that the law might not support a comprehensive EIE for the master plan. Sherman asked Mr. Coite if there is a schedule for completion of the master plan; Mr. Coite said it is expected to be presented to the trustees of the university in December.  Bruce Wittchen of OPM was in the audience and, in response to a question from Hilding, said that a comprehensive EIE would be preferable, but that the law was an impediment.

Chair Merrow read the second question from Ms. Suprenant, which concerned the public hearing process for the water diversion permit for the proposed water supply to UConn. Wagener said that he would get that information from DEEP staff and convey it to Ms. Suprenant.

Executive Director’s Report

Wagener said that he had attended a meeting of state agencies to discuss the revisions proposed by the Office of Policy and Management (OPM) to the generic Environmental Classification Document (ECD). He said the document needs to be updated. He said that OPM staff asked participants to get back to them with their understanding of the points which they believed were agreed upon at the meeting. Sherman asked why it has taken so long. Wagener said that one reason is that there is disagreement among agencies as to the thresholds that should trigger an EIE, and he would discuss this later in the meeting. Hilding and O’Donnell arrived during the discussion.

Hall observed that based on Dunbar’s comments on the dramatic impact of impervious surfaces on stream quality, other considerations than square footage of proposed buildings need to be included in a new ECD. Chair Merrow said this is a very important issue and would be taken up in the discussion with Commissioner Klee. Dunbar asked if the regulations in question would be DEEP’s responsibility. Wagener said they would. Dunbar responded that the approval process would include the legislature’s Regulations Review Committee. He said they will not fly through that review unless consensus is reached ahead of time. The result could be different than what the Council would like. Nevertheless, said Hall, the fact that the regulation revision has taken twelve years is unacceptable. Hall asked where one could find the ECD. Wagener said it is available on the OPM website.

Wagener said that the office had received a letter from a Massachusetts resident, which was sent to the members in advance of the meeting, asking for Connecticut officials to adopt policies that would avoid the need for a proposed expansion of a natural gas pipeline through New England.

Wagener announced that the Connecticut Land Conservation Council will be holding a conservation policy summit on Wednesday October 8th, at 6:30 PM, in which he would be participating.  Sherman asked Mr. Coite if there is a schedule for completion of the UConn Master Plan. Mr. Coite said it is expected to be presented to the trustees of the university in December.

Chair Merrow noted the time and asked Wagener to continue with his report. Wagener said he is preparing the budget reduction option that had been requested by OPM.

Wagener said a number of organizations are applying for a grant from the U.S. Forest Service to work on presentation of land cover data. They have asked to be able to list the Council as a partner in this effort. Wagener said the data could be of considerable use to the Council. Hall said that it must be made clear in the application and any publications that the Council is receiving none of the funds. With that condition, the Council approved the request by consensus.

Wagener asked the Council’s intern, Jonathan Bauer, to explain some of the research he has been doing relating hypoxia to dissolved nitrogen and point source discharges in Long Island Sound. Using charts, Bauer showed preliminary trends in nitrogen reduction, hypoxia and chlorophyll concentrations and discussed other parameters he will be examining. He said there are no conclusions to be drawn as yet despite the apparent relationships among trend lines. Dunbar reinforced that caution by saying the chemistry of hypoxia is extremely complex and the many contributing factors could include weather, reductions in air pollution and even the recession.

Review of State Agency Actions

CEPA Regulations, Part One: Discussion of Deficiencies -- Chair Merrow reviewed the letter that had been sent to Commissioner Klee in advance of the meeting, and said that she wanted to discuss which points members wanted to emphasize during the later discussion with the Commissioner. After discussing the general obsolescence of the regulations, Wagener introduced Mr. Fromer of Windsor by noting that EIE’s rarely include analyses of energy impacts, and they are never satisfactory. He suggested that now that energy and environment are combined into the same agency it is an appropriate time to advance the practice of energy impact analysis.

Mr. Fromer said he had been an environmental consultant for 35 years. He said that Connecticut law (CGS Section 16a-35k) establishes state energy policy, which is to be implemented in the regulations  of the Connecticut Environmental Policy Act (CEPA). He said that EIEs should include an analysis of the direct and indirect energy use of the proposed project and of alternative choices. He referenced as an example a recent EIE that had no energy analysis. He said that a proper analysis would allow for choices that would reduce energy consumption and greenhouse gases. A proper energy analysis would include more than just operational energy use. It should also consider the energy inputs to build the structure and eventually to raze it. The foundation of such an analysis was put in to statute in 2007. Wagener noted that much of the language remains, though is seldom used, in CGS Section 16a-7c, which was sent to the Council in advance of the meeting. Mr. Fromer said such analyses are performed in Europe. Life cycle energy estimates are available on the internet, for example at “ecoinvent.” He stressed the long term importance of reducing petroleum consumption, and extending the supply of fossil fuels, through better energy choices.

Dunbar said that energy costs are already incorporated into the cost of goods and materials. Mr. Fromer said that cost is not relevant; he said that what matters is BTUs. Dunbar asked how a structure which is run “off the grid” should be assessed in an EIE. Mr. Fromer said that only solves the operational aspect of its energy equation. The life cycle costs still have to be accounted for. Hilding asked if traffic considerations are taken into account in calculating the life cycle energy costs of the building. Mr. Fromer answered that it could be considered, depending on the boundaries of the project analysis.

Sherman said that this is not solely a question for DEEP, as OPM has approved EIEs absent energy analyses. Fromer said that when he raised the issue in the past he was told this would be done in the design phase of construction; this defeats the purpose of an EIE, which is to evaluate options during the planning stage of a project. O’Donnell asked what are the standards for acceptable efficiency, by which a project is to be judged. Sherman said there are standards in the international conservation and energy code. Wagener said the EIE is expected to present alternatives. It should explain the purpose and need for a project, and evaluate reasonable alternatives. There is no requirement that the alternative with the least impact be chosen. The record of decision should explain how the final decision is made. The big question, said Dunbar, is who will bear the cost of the project. Wagener noted that cost-benefit analyses are required by the regulations but are rarely seen. Hall spoke in favor of the simple proposition that if something is required by regulations, it must be adhered to. Fromer and Sherman agreed that a flaw in the building codes is that they address only heating and cooling calculations; the question of externalized costs is not addressed. When life-cycle analyses are not preformed, renovation always comes out at a disadvantage in comparison to new construction.

Brooks made the point that there is a deficiency in the CEPA regulations that could allow private projects on state land to escape an EIE altogether. The state might have no investment that would trigger an EIE review, and the town may decline to regulate the project because it is on state land.

Chair Merrow said these are two good issues to bring up with Commissioner Klee. She asked if the Council wished to discuss any of the other questions which the Council included in its invitation to the Commissioner.  Hall said that public participation is a huge component of the CEPA regulations that can be raised since the Council has heard from citizens who were dissatisfied by the hearing process.  Dunbar said DEEP should be very attentive to the provisions of CEPA since lack of adherence could lead to a project being tied up in litigation. Hall said she would like the Commissioner’s opinion on the effect of the elimination in the CEPA process of the “finding of no significant impact”. Sherman said that this occurred with a promise that scoping would be more thorough and that EIEs would be better because public input would be included in the scoping process.

Wagener said that among the problems foremost is the fact that in the case of public–private partnerships, much of the design work has been completed and municipal approvals obtained when the scoping is announced and the project is presented with no alternative options. Chair Merrow said these issues would be raised with the Commissioner.

Progress towards revising the Green Plan -- Wagener said he met with DEEP staff who are interested in revising the state’s Green Plan. He said they are looking to include short term goals and to include planning for climate resiliency, both of which had been supported by the Council. he expressed optimism about the direction of the revised plan.

Chair Merrow said that other state agency actions on the agenda would be taken up after the discussion of CEPA with Commissioner Klee.

CEPA Regulations, Part Two: Discussion with Commissioner Klee

Commissioner Klee arrived, accompanied by Fred Riese of his staff. Chair Merrow welcomed him and thanked him for attending. She said the Council had outlined its concerns in the invitation which he was sent. The members of the Council introduced themselves.

Commissioner Klee said he was appreciative of the opportunity. He began with a brief summary of his background. He said his primary objectives for the agency lay in the areas of climate, reducing CO2, renewable energy, and energy efficiency. He said that adaption to a changing climate will be a focus and this will include natural as well as social systems. He said DEEP is working closely with UConn on this. He acknowledged some of the problems which are a consequence of the obsolesce of some of the regulations regarding CEPA. He said his office is working on these problems in conjunction with OPM and the governor’s office. In response to a question from Hall, he said that he hoped to have those discussions in October or thereabouts.

Hilding asked if Mr. Fromer could explain for the Commissioner the energy considerations he had brought before the Council regarding EIEs earlier in the meeitng. Mr. Fromer reviewed the salient points. Mr. Riese said that new regulations would probably recommend examination of operational energy costs but that life cycle analyses were impractical in many cases. Commissioner Klee added that Connecticut already holds itself to the highest standards for construction.

Wagener and Sherman said that too often projects are applicant-driven and presented with no alternatives. The Commissioner said that even at that stage there remains the possibility for mitigation.

Members raised most of the concerns discussed earlier in the meeting. Hall expressed concern that the statute, regulations and the actual process are not in accord. Regarding the need for life-cycle energy analysis, she cited the Yale waste-stream analysis as an example of an exemplary analysis. Brooks mentioned the private-funded project on state land problem she had discussed earlier in the meeting.

Chair Merrow said the public has often come before the Council out of frustration with the public input process of hearings and notice of hearings. She said these can be daunting to the layman. The Commissioner said the agency is in the process of revising its public notice and comment system on its website to be much easier to navigate and obtain information. He expects a beta version to be available by the end of the year. Transparency is a prime objective.. Mr. Riese added that the addition of Records of Decision to the Environmental Monitor would be a good way to improve transparency by allowing the public to see how a final decision was made.

Wagener noted the state money that is wasted on bloated EIEs, and asked if consideration could be given to setting a maximum length for EIEs, as has been done in some other jurisdictions. The Commissioner said that a good executive summary would accomplish this objective, and that agencies should try to guide their consultants toward concision. He added that the agency is making an effort to make all its documents more easily understood.

Dunbar suggested employing a listserve to improve public participation. He also said that CEPA regulations should include an off ramp for projects of minimal impact.

Sherman referred back to the issue of public hearings and the perception of bias by hearing officers against the lay public.  Commissioner Klee said the reality is that hearing officers are thoroughly trained to be unbiased, but the process can be daunting for the non-lawyer, as his own technical staff has learned on occasion. He said that sometimes participants have unrealistic expectations; perhaps a set script to be read before the hearing that would explain the participants’ rights and the role of the hearing officer would be helpful. Wagener asked about the plans to revise the rules of practice that govern hearings. Commissioner Klee said those changes are tied to the other docket-management revisions discussed earlier and will proceed together.

Hall noted that improvements to the regulations might cause consternation for some, but that it was important to stand firm on the purpose of the regulations.

Chair Merrow thanked the Commissioner for his time and said she hoped this will be the beginning of a useful dialogue. 

Chair Merrow returned to the discussion of state agency actions on the agenda, where discussion was left before the arrival of the Commissioner.

Invasive Plants Council's Review of Running Bamboo -- Wagener reported that the IPC had decided at its September meeting to conduct a technical review of the sites where bamboo has apparently grown into natural areas.

Water Planning Council's (WPC) Memorandum of Understanding (MOU) with the University of Connecticut -- Hilding and Dunbar reported briefly on the WPC's September 16, 2014 meeting where the MOU was discussed, and expressed some puzzlement on exactly what action was taken by the WPC. Sherman expressed his concern that the public's comments were dismissed without comment, and, as it appeared that there may have been some previous discussion among members, perhaps the WPC was not acting in conformance with the Freedom of Information Act. Hall had to leave the meeting. After some discussion, Sherman made a motion that the CEQ should address the WPC's public participation procedures and deliberations with regard to the MOU and development of the statewide water plan, and that staff be asked to gather the facts and to draft correspondence for consideration at the October meeting. The motion was seconded by Hilding. The motion was approved unanimously, with O'Donnell abstaining.

There being no further business, O’Donnell made a motion to adjourn which was seconded by Sherman. Adjournment was at 12:25 PM.