Minutes of the July 28, 2010 meeting of the Council on Environmental Quality held in the Holcombe Conference Room at 79 Elm Street, Hartford.
PRESENT: Barbara Wagner (Chair), Howard Beach, Janet Brooks, Bruce Fernandez, Norman VanCor, Richard Sherman, Karl Wagener (Executive Director), Peter Hearn (Environmental Analyst).
Chair Wagner convened the meeting at 9:06 AM, noting the presence of a quorum.
Chair Wagner asked if there were revisions to the minutes of the July 15, 2010 special meeting. There was none. VanCor moved to approve the minutes; second by Fernandez. Approved unanimously. Beach arrived after the vote.
Executive Director's Report
Wagener reported the following:
1) The Council had been asked to co-sponsor, as usual, the statewide Forest Forum scheduled for November 23. Members concurred that the Council should continue as a co-sponsor.
2) Commissioner of Environmental Protection Amey Marrella conducted a briefing the previous week about the Department's activities to prepare the required report on improving 25 permit processes. Wagener noted that she also mentioned that, in the future, all parties need to have a discussion about remediation and what the state's mission and role therein. Brooks added that she had attended a working group meeting pertaining to water permits, and noted that any additional Department of Environmental Protection (DEP) staff time to be devoted to permit processing will necessarily come from time spent now on other activities.
3) On August 5, there will be a working group session to assess the impact of the Connecticut Environmental Protection Act on the permitting process, which is required by the same 2010 law that requires the DEP to study permit processes. He and Brooks planned to attend. Sherman questioned whether the Protection Act affected many state permits, given the difficulty and expense of intervening in a permit proceeding. There would be a report at the August meeting.
Citizen Complaints
Tylerville contamination -- Chair Wagner said that the objective was to review, edit and approve the draft letters to Governor M. Jodi Rell and the Commissioners of Environmental Protection and Public Health. Wagener reported that since the last meeting, provision of a public water supply moved up on the Department of Public Health's (DPH's) priority list of projects eligible for a loan. In response to a question, he said there is no new information regarding enforcement action by the DEP against any polluter in Tylerville.
There was considerable discussion of the content of the three letters. Suggestions were made to reorder some of the paragraphs and bullet points. It was decided to divide the Governor’s letter into two parts. One part will address the issue of Tylerville specifically and the other will address the broader question of shortcomings in the state’s approach to such issues.
Sherman made a motion to approve the letter with the changes discussed and agreed to. The motion was seconded by Beach and approved unanimously. Fernandez asked if a copy should be sent to interested legislators. Wagener said that the draft is now public and available to anyone who is interested in the issue. VanCor said this problem should be a topic for a future legislative communication from the Council; members agreed.
Chair Wagner asked for comments on the letter to the commissioners. A number of editorial changes were made. Sherman raised the question of the propriety of sending a copy of the letter to the Governor to her commissioners. It was decided that since the commissioners’ letters reference the correspondence with the Governor, attaching the letter is a courtesy and would save time for all of the recipients.
VanCor motioned to approve the letter to the Commissioner of Environmental Protection with the changes discussed and agreed to. Second by Fernandez. Approved unanimously.
Beach made a motion to approve the letter to the Commissioner of Public Health with the changes discussed and agreed to. Second by Sherman. Approved unanimously. Wagener said that he would send the approved letters to members so they could confirm that he included all of the changes agreed to.
Chair Wagner suggested that the agenda be adjusted to accommodate the schedules of people in the audience.
Proposed land swap in Haddam -- Steven Rocco, a principal of the Riverhouse in Haddam, was introduced to explain his ongoing proposal for a land swap. The proposal is to exchange 85 acres owned by his company near the Cockaponset State Park for 17 acres owned by the state adjacent to the Riverhouse property near the Connecticut River. Using slides of the two parcels he explained why he believed the deal would be of benefit to the town and the state and would be compatible with the prevailing land uses in each location. He explained that he was willing to accept scenic covenants to protect views from the Connecticut River and that preservation of the land near Cockaponset would protect a scenic ridge in Haddam. He cited letters from three conservationists, including the chairs of the Haddam conservation and inland wetlands commissions, who support the swap for environmental reasons. After Mr. Rocco’s presentation, Council members discussed what role, if any, the Council should have in this proposal. Wagener said complaints have been received about the process of mandating the swap through legislation. He said that disposal of the land through the DEP's administrative process allows for public notice and deliberation through public comment, and in that respect is a superior process. The administrative process requires the initiative of the state agency that owns the land, and he said that the current commissioner has indicated that she is not interested in pursuing the swap offer. Members concurred that if there is a process that goes forward to implement the swap, it should be the administrative process that includes opportunities for public comment and natural resource evaluations; members agreed to follow this matter as appropriate.
Citizen Complaints (cont.)
Diversion of Swan Lake, University of Connecticut (UConn), Storrs Campus -- Wagener reminded the Council that this issue first came to the Council through Mr. Quentin Kessel who was concerned about both the diversion of runoff into a drinking water supply watershed and the fact that it had been done without the proper permits. Wagener said that the DPH had resolved the permitting question by reviewing and approving the University's application in June. He said that DPH staff told him that they had taken the unusual step of reviewing the application as if it were being presented prior to the diversion. Richard Miller, Director of Environmental Policy of UConn, was in the audience and was asked to speak to the history of the diversion and the application. Miller explained that the plunge pool in the design was to reduce erosion and pollution. He said that oil-water separators are installed. Brooks asked why it did not require a diversion permit from the DEP; Miller replied that it was below the size threshold.
Wagener said that Mr. Kessel was correct in concluding that the Swan Lake diversion was implemented without the required permit from the DPH. However, now that the DPH has reviewed it, there do not seem to be any regulatory gaps left open. More importantly, he said, all of the parties are now aware of all of the regulatory requirements, so that any future diversions are unlikely to escape full review. About the substantive impacts of the diversion, he said there are hundreds of developed acres in that part of the Fenton River watershed and this diversion added runoff from the 16-acre Swan Lake watershed.
Water supply issues related to Ponde Place development, Mansfield -- Wagener referred to the draft letter that had been prepared for the citizen who sent the complaint to the Council. Although it may have appeared to the complainant that certain questions were not receiving sufficient attention from technical reviewers, in fact the matter is receiving much technical scrutiny. However, he recommended that the Council recommend to the University that it investigate possible effects of withdrawals on nearby watercourses, and the importance of defining all of the conditions associated with any proposed "emergency" connection to the UConn system. Brooks suggested an editorial change before the letter is sent to UConn.
Review of other issues raised at Haddam public forum
Higganum contamination -- Wagener recapped information from the July 15 meeting regarding Higganum Cove and Higganum Center. While the areas are getting attention, it is quite possible that no remediation will occur in the foreseeable future, he said.
Sibley Company -- Wagener reported that the answer to the question raised by Mr. Sibley at the public forum about the reason for the recent inspection by the DEP relative to a tank that had been removed many years before was that it been come to the DEP's attention that a required closure form had not been submitted; no Notice of Violation resulted from the inspection.
Valley Railroad -- Wagener said that there were five issues raised by several persons at the forum pertaining to private access, public access, herbicide use, future freight service and permit jurisdiction.
Private Access: At the forum, a member of a family with a “landlocked” parcel had spoken of the need for assistance securing a right-of-way across the state-owned land that is leased by the Valley Railroad. After considerable discussion, members concluded that the dispute is a property dispute, not an environmental problem, and that while it would be good to be able to help the family, no solution was apparent; the Council could not advise the DEP to provide access if the DEP thought there was a safety concern.
Public access: Speakers at the forum asked about access to the Valley Railroad property for hiking. Hearn said that the active portion is posted “no trespassing” for obvious reasons, but pedestrians are not prohibited on the inactive portion, or at least they are not charged with trespass. However, he reported that the DEP believes there are inherent risks associated with the deteriorating trestles, and walking is therefore not encouraged since there is no way to block access to the trestles as the railroad needs access to them for rail vehicles. Regarding the comments heard at the forum about then-Natural Resources Commissioner Joseph Gill's published comments from 1969 about the line being bought as a public asset for hiking, picnicking and similar types of recreation, Wagener said he had no idea why he would have said that as the 1967 legislation authorizing the purchase and incorporating the Valley Railroad makes it clear that rail service was anticipated. Wagener addressed the citizens' comments that the property was acquired with funds from the Land and Water Conservation Fund, which requires public access. Wagener read the federal requirements for such lands; they must be open to the public at reasonable hours and be kept attractive and in good repair. The unused portion of the line is not being kept in good repair, concluded Wagener, and a reasonable plan for that section of the railroad tracks would apparently depend upon the railroad’s plans for it, as the railroad has a lease on the entire line through 2027. Chair Wagner suggested that staff inquire of the railroad regarding future plans for the land and the time horizon for those plans. Wagener said he would report on his findings.
Herbicide Use: The question of herbicide spraying as a maintenance method had been raised at the forum and was discussed by the Council. Citizens wondered why the line was sprayed nearly every year when no trains had run on that portion for 40 years. Wagener said the spraying was being done this year by properly-licensed applicators who used equipment which restricted the spray area. Wagener said that the railroad stated that it was required by Federal Railroad Administration regulations to control vegetation; he had reviewed the regulations and did not determine if they apply to rail lines not in use. In discussing citizens' comments about possible health effects, Beach said that rail beds are notorious for a long history of toxicity and that the spray may be more benign than what is already there. Beach also said that his town had abandoned railbeds, and once trees are allowed to regrow they have to eventually be removed roots and all, not just cut.
Freight Service: Wagener said that the railroad’s lease and incorporating statute allowed for freight service. Wagener reported that the proposal for federal grant money to rebuild the line for freight service had been rejected earlier in the year, and that in light of the anticipated capital costs he saw the possibility of freight service as remote. He also said that he had just read a news article that indicated that the Connecticut Department of Transportation was abandoning plans to seek more federal funds for freight lines, to the dismay of existing freight line companies. Sherman asked if freight service on this corridor is part of the state’s transportation master plan; Wagener said he would find out.
Permit Jurisdiction: Also at the forum, citizens asked if permits should have been obtained for the railroad's repair work near the Connecticut River. Wagener showed the pictures that had been submitted. Because the river is tidal, the DEP would have jurisdiction if the work occurred in the river, but as the work was outside the river and the DEP does not regulate an upland review area, no DEP permit was required. The DEP had looked at the situation and made that determination prior to the work. Interestingly, he said, the question of whether a municipal inland wetlands agency may regulate activities in an upland review area adjoining a tidal watercourse, or if such a review area may exist, is being litigated in another town. Citizens had also inquired about what agency, if any, inspects such a project for safety; Wagener reported that the DOT inspects the line generally, but not each specific project. The railroad has an engineer who is expected to oversee the project and assure its adequacy.
Maromas
With the use of slides, Wagener showed the location and extent of open space and industrially-zoned land in the Maromas section of Middletown. While the Council normally would not involve itself in local planning matters, the state has a large role to play in the future of the Maromas area, he said, noting the presence of the Connecticut Valley Hospital (CVH) and its reservoirs and watersheds, Cockaponset State Forest, other state lands, and an agreement with large landholder Northeast Utilities that gives the state the right of first refusal through 2014. Regarding the last point, he said that the agreement remains in effect and is not completely dormant, though no acquisitions of utility land have occurred recently. The bond commission allocated funds in July for the Recreation and Natural Heritage Trust program for the first time is some while.
One of the concerns heard at the forum was about the proposed golf-course use of former state land transferred to the city; Wagener said he had not examined the deed but the special act authorizing the transfer allows for active recreation.
Wagener reported that in 2007 the General Assembly had required the DEP to conduct a study, in cooperation with several other state agencies, regarding the permanent preservation of the CVH reservoirs and adjacent lands, and had appropriated $50,000 for the study. The DEP, however, spent just $3500 on a title search and did not complete the required study. Although the unspent money is no longer available, members concurred that it should not cost much money and agreed to recommend to the DEP that it conduct the study. There was some discussion of possible long-term threats to the watershed lands, including the fact that the lands, because they are owned by the state, are not classified and subject to the same land-use restrictions that other water utility lands are.
Chair Wagner asked that the research and conclusions on these questions be reported to those who spoke at the forum. Wagener said there will be more issues from the Haddam forum on the August agenda.
Review of State Agency Projects
Telecommunications Tower in Suffield -- Wagener said that the Siting Council had revised its application guidelines to require photo-simulations of proposed cell towers in leaf-off conditions as well as in leaf-on conditions. He said that a recent application had arrived that is not in compliance with the new guidelines; members concurred that brief comments to that effect would be warranted.
Other Business
Chair Wagner asked if there are any other items for discussion. Brooks asked if the Council should invite the DEP to describe how and whether the state is prepared for the possible invasion by the Emerald Ash Borer, which has been discovered in eastern New York. The Chair asked staff to look into it. Members discussed the format for upcoming meetings and forums.
There being no further business Chair Wagner asked for a motion to adjourn. Motion was made by Sherman and seconded by Brooks. The meeting adjourned at noon.