Minutes of the December 18, 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, Lee Dunbar, Karyl Lee Hall, Alison Hilding, Michael Klemens, James O’Donnell, Richard Sherman, Karl Wagener (Executive Director), Peter Hearn (Environmental Analyst).
At 9:28 AM, Chair Merrow called the meeting to order, noting that the snowy conditions of the roads caused a delay but that a quorum was now present.
Chair Merrow reviewed the agenda and asked for a motion to approve it. Hall so moved and Dunbar seconded. It was approved unanimously.
Chair Merrow asked if there were any additions or modifications to the minutes of the November 19, 2013 Council meeting. There were none. Hall made a motion to approve the minutes which was seconded by Hilding and approved unanimously. Klemens and Sherman were just arriving and did not vote.
Chair’s Report
Chair Merrow thanked all who participated in the December Public Forum, saying that it provided the public an important opportunity to air their concerns. She said that in the interest of time she wished to proceed immediately to the Executive Director’s report.
Executive Director’s Report
Wagener said that Chair Merrow and he were expecting to meet with staff of the Department of Transportation, Department of Economic and Community Development (DECD) and Office of Policy and Management to discuss the application of the Connecticut Environmental Policy Act (CEPA) to the proposed Governor’s Station project in Windsor Locks.
Wagener said there was an article in the Connecticut Mirror about the petition filed by eight eastern states in an attempt to effect pollution reductions in midwestern states. The article linked to the Council’s annual report pages that showed air quality trends, which Wagener said is an excellent use of the report.
Wagener also listed meetings that had been attended by staff since the November Council meeting.
Discussion and approval of draft recommendations for legislation
Chair Merrow and members discussed several criteria for including recommendations on the list; Merrow said that a recommendation must be more than a good idea and that it must be ripe for legislative action. Dunbar said that the suggestions must not only identify problems, but must also suggest solutions; Wagener concurred, saying that the successful recommendations of the past were those that contained credible solutions. Chair Merrow added that a “watch list” can be maintained for issues that are deserving of attention but do not have the elements described above for them to be worthy of legislative recommendations this year.
Wagener said the revised list of suggested recommendations he sent to Council members included some modifications suggested by those who spoke or submitted testimony at the December Public Forum, and that a separate memo listed all of the ideas raised at the forum, for consideration. Discussion began with the issue of permanent preservation of lands owned by the state. After considerable discussion, the members agreed to give highest priority to adoption of measures that will provide conserved land more protection, second priority to improving the process by which legislative and administrative land exchanges are initiated and conducted, and also to add the recommendation from the forum that new restrictions be placed on parties’ ability to modify or release conservation easements, including requirements for public notice. Klemens expressed reservations about anything short of protecting the lands in perpetuity, and noted the provisions governing land exchanges in the Adirondacks which provide a very difficult path to exchange; that provision is constitutional, not statutory, and members agreed that the idea of a state constitutional amendment should be put forth. Members concurred with the suggestion of putting that idea into the special report, Preserved But Maybe Not.
O’Donnell said that if the choice is between rigid preservation and allowing disposal of lands with safeguards, he must support the latter. He said that climate change will force governments to make accommodations to rising tides and shifting landscapes on its lands. Klemens said that a crucial concern with regard to loss of state open space is loss of connectivity of habitats in a time of climate change when migration of species will be essential to their survival. He added that some parcels that appear not to be of much value now could be extremely valuable in the future if they provide space needed for the natural progression of habitats like tidal marshes. The capacity for a parcel to serve a new, or different, purpose is called resilience. Connectivity and resilience are the two most important issues to consider in preservation now. Members agreed to add language about considering a parcel’s importance for resilience.
There was further editing of the wording of the recommendations. Chair Merrow summarized the points of agreement.
Discussion moved to the issues of invasive species and the suggestion of adding recommendations regarding the control of running bamboo. It was agreed to describe invasive species as a great threat. Wagener referred to the latest letter (of nearly 30) received regarding the problems being created by running bamboo. He explained that the state Invasive Plants Council determined that it does not meet the legal definition of an invasive plant because it reproduces by rhizomes rather than seeds and it might not be a competitive threat to native plants in areas that are not landscaped by humans. Klemens disagreed with that assessment. Wagener said that he regards it nonetheless to be an environmental issue, similar in certain ways to noise, odors, dust, leaking oil tanks and other regulated environmental problems that affect people and property in developed areas only. Looking at the question of whether it is technically an invasive species is too narrow a focus, Wagener suggested. He added that those who testified at the forum brought photos showing the plant growing in wild areas; Klemens agreed on that point, saying he had seen it in wooded areas and around vernal pools. Hall said that despite being opposed to plant-by-plant legislation to address species, she has come around to thinking that legislation would be appropriate for bamboo. She said there appears to be no alternative in this case, and would recommend a law similar to that of Bozrah’s ordinance. Hilding asked for clarification about the penalty in the existing state law on running bamboo that was passed last year. Hall added that there has been no enforcement yet. Chair Merrow said that many of the speakers at the Public Forum advocated adoption of Bozrah’s ordinance, which requires a forty foot “bamboo-free zone” at a property’s edge. She said it puts the responsibility on the property owner. Dunbar said the issue appears in the wrong place in the Council’s list of recommendations; he suggested that it belongs in the “citizen complaints” section, not in the “basics” section where it appears in the draft document; members concurred.
In response to a question from Klemens about changing the definition of invasives, Wagener said that he understood that the statutory definition was drafted carefully so the Invasive Plants Council would not be ruling on plants that are mostly lawn and agricultural weeds. After considerable discussion, members agreed to recommend that the General Assembly add, by statute, running bamboo to the list of invasive species. Members declined to recommend specific solutions for resolving ongoing neighbor problems.
During the discussion Hilding observed that a member of the public had come to address the Council and had not been heard. Winifred Gordon of Mansfield was invited to speak. She thanked the Council for the opportunity and said she had come to ask how the agreement between the Connecticut Water Company and the University of Connecticut at Storrs (UConn) will affect ownership of the UConn infrastructure and water shed protection policies. Ms. Gordon also said that she and others were disappointed that the Council’s expert did not testify at the public hearing regarding inland wetlands and the extension of Hillside Road at the UConn north campus. Hilding said she was concerned about the way public input was handled by the hearing officer at the hearing. Wagener said that hearing procedures will come up later in the agenda, and that the Council will continue to watch the water issue.
With regard to other invasives, it was agreed there is a need to prepare a plan for a rapid response when an invasive species appears in the state. Klemens added that in addition there is need for a plan to address the invasive plants already in the state. Members agreed.
With regard to siting of telecommunication towers Klemens said he is concerned that a failure to notify all who have a potential view will be cause for appeal of a siting decision. Wagener suggested that the legislation could specify that failure to be notified would not be a defect in notice if a reasonable effort was made to provide notice. The Council agreed to this.
On the topic of outdoor woodburning furnaces (OWFs), Sherman alerted the Council to proposed changes by the federal Environmental Protection Agency (EPA) of emission standards for all woodburning appliances – indoor as well as outdoor. Wagener added that unless the current state law regarding OWFs is rewritten, all the state’s regulations regarding setbacks and chimney heights will go away when the new EPA standards are adopted.
Dunbar referenced the suggestion that had been made at the December 5 Public Forum regarding stream classifications. He said that stream classifications do not reflect the existing water quality of a stream; they only restrict what can be put into the stream from a point discharge. A “class AA” stream is one that is part of an existing water supply. A “class A” has the potential to be a water supply. Either could be polluted due to farm runoff or septic seepage on its journey, so the designation is not a reflection of what the stream is like, only what can be added to it through permitted discharges.
Hilding said the recommendation regarding pharmaceutical disposal needs to be expanded to include a recommendation that the biological half life of those chemicals be shortened, as had been done with pesticides. Chair Merrow said that the proposal might need more work and could be on the Council’s “watch list”.
In response to a question from Sherman, Wagener said the Council could add to the “watch list” the question of whether trash-to-energy plants should be eligible for “class one” renewable energy credits.
Klemens noted that the Connecticut Association of Conservation and Inland Wetland Commissions (CACIWC) had suggested that the Council recommend legislation to improve training for local wetland agency members, which he said was extremely important. Members concurred that it was very important, but agreed to postpone action for a year on the condition that staff provide a report evaluating the results of the new online training program.
Merrow asked for a motion to approve the draft recommendations as modified with the understanding that the numerous modifications would be circulated for review and corrections. Klemens made the motion and O’Donnell seconded; approved unanimously
Discussion of staff memo Preserved But Maybe Not
Chair Merrow pointed out that the Council had decided in the previous discussion to include reference to a constitutional amendment as a preservation technique. After discussion, it was the consensus to modify the recommendations as agreed in the earlier discussion of legislative recommendations, and to publish the memo as a special report for submittal to the governor with copies to legislators and the commissioner.
Discussion and approval of letter regarding outdated regulations
Wagener and Brooks discussed the DEEP Rules of Practice regulations and the applicable statute and regulations for conducting hearings and whether non-sworn testimony can be given weight when the person is not sworn or is not available for cross examination. Dunbar said that often a hearing officer will pose the questions submitted by absent parties to the parties to the hearing; he said this is a courtesy to get the comments on the record and is not required. There was considerable discussion. Brooks said the right to cross examine is a fundamental one and should not be diminished. Wagener said the newspaper notice for these hearings could be revised so that people know what they need to do to have their comments considered in a meaningful way. Hall and Brooks agreed that public education on this point could be better. Chair Merrow suggested the letter raise these issues and not offer specific solutions, as the regulation revision process would provide opportunities to participate. Alison said a public forum on this question is appropriate; Brooks suggested that the DEEP Adjudications Chief could be invited to a Council meeting to discuss it. Chair Merrow agreed to put this on the “bike rack” for future consideration. There was consensus to keep the draft letter’s other four recommendations of outdated regulations to be considered for detailed review – two air regulations, inland wetlands and watercourses regulations, and CEPA regulations – and to send the letter to Commissioner Esty with the modifications to the Rules of Practice section discussed and agreed above.
Discussion of the Record of Decision regarding the Villages in Montville
Wagener recounted that this is a residential development for which no alternatives were considered. After some discussion, members agreed that staff’s advice to OPM, when consulted about the Record of Decision (ROR), should be that the EIE and ROD are not adequate because 1) no alternatives were evaluated, 2) the proposed project runs counter to the state’s responsible growth policies, and 3) the responses to the Council’s comments about evaluation of ecological resources are insufficient.
Staff update on other projects
Wagener said the staff reviewed the EIE for UConn’s Main Accumulation Area. No comments were recommended. Hilding asked if there was discussion of the possible effect of construction on UConn’s former landfill and chemical pits. Wagener said that the comment period is still open and if any residents have that concern they should submit it because all comments received must be answered.
Wagener said the office received a noise complaint about testing of aircraft components, which is largely exempt from state noise regulations. Members agreed that a letter to the company might be an effective route to take.
Chair Merrow said that the meeting’s late start, due to weather conditions, will require postponement of discussion of annual report indicators to the next meeting.
There being no other business Dunbar made a motion to adjourn, seconded by O’Donnell, and the meeting was concluded at 12:22 PM