Minutes of the August 24, 2016 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), Alicea Charamut, Lee Dunbar, Karyl Lee Hall, Alison Hilding, Kip Kolesinskas, Matt Reiser, Karl Wagener (Executive Director), Peter Hearn (Environmental Analyst).
At 9:32 AM, Chair Merrow convened the meeting, noting a quorum.
Chair Merrow asked for approval of the agenda. Dunbar made a motion to approve that was seconded by Hilding and approved unanimously.
Chair Merrow asked if there were any revisions to the minutes of July 27, 2016. Chair Merrow said the minutes did not reflect her comments regarding the loss of Louis and Judith Friedman, who had contributed greatly to the Connecticut environmental movement and who will be greatly missed; she had asked that they be held in the Council’s thoughts. Hall noted that she had not abstained on the vote to approve the June minutes. Hilding suggested a number of improvements where the meaning needed to be made clearer.
Charamut made a motion to approve the minutes with the changes that were discussed. It was seconded by Dunbar and approved unanimously, with Kolesinskas abstaining because he had not been present at the meeting.
Executive Director’s Report
Wagener said it had been a busy month for staff. Much of what was accomplished will be covered during later discussion of agenda items. He said that at the July meeting the question was raised of whether or not a state-sponsored project on private property which was leased to the state would be exempt from local zoning authority. He reported that the Office of Legislative Research issued a memo in 2007, based on two earlier opinions of the Attorney General, concluding that such a project would be exempt from local zoning.
Citizen Complaints
a. Review and Protection of cultural resources on state lands
Wagener said that Douglas Schwartz, who had made a presentation to the Council in June on the presence and importance of Native American stone structures on state lands, had expressed interest in coming to a future meeting; this topic was postponed to an upcoming meeting.
b. Seaside State Park and the Connecticut Environmental Policy Act
Wagener summarized the complaint, and chair Merrow referred to the memo that had been distributed to members in advance of the meeting. Wagener said that the complaint pertained to a possible violation of the Connecticut Environmental Policy Act (CEPA), which is an unusual environmental law in that it contains no enforcement provisions and no enforcement agency. The complaint is that an environmental impact evaluation (EIE) should have been conducted before custody and control of the Seaside property was transferred from the Department of Administrative Services to the Department of Energy and Environmental Protection (DEEP), rather than after the transfer, which is when the EIE was initiated.
Chair Merrow said it is uncertain that a change in custody of state land from one state agency to another qualifies as an action under CEPA. Hall made the point that the act lists circumstances which would require an EIE using the phrase “including”, which suggests it is not a comprehensive list and others could be deemed appropriate. To make a correct decision it would be necessary to know the legislative history of the bill. She said the Council is not a legal authority and is therefore hesitant for the Council to make a legal determination. She said that the Council could ask the attorney general to issue an opinion. Chair Merrow and Wagener said that in the past the Office of the Attorney General has been reluctant to offer opinions to agencies that were not parties to the issue in question. Dunbar said there is a logic to the attorney general’s policy and he does not see an appropriate role for the Council in offering an opinion. He said the EIE for the project should be reviewed carefully by the staff.
Wagener said there is no doubt that if the land were being transferred out of state ownership, with use restrictions, that an EIE would be required. He could not recall one for a transfer of custody between agencies. Dunbar said the correct action for the Council would be to send a memo to the DEEP Commissioner informing him of the complaint’s specifics. Chair Merrow summarized this discussion and there was consensus that the Council should send a memo to Commissioner Klee to make him aware that the Council had received a complaint regarding the timing of an EIE for the Seaside property.
c. Pollinators and Mowing on Public Lands
Wagener said the Council had received a mailing from a person who was concerned that the Metropolitan District Commission’s (MDC’s) practice of mowing some of its fields in midsummer was affecting pollinating insects. Photographs were displayed on the screen. Most agencies recommend mowing in the fall. The person received a response from the MDC saying that a manual to guide mowing was being developed. The response noted that some areas, such as dams, had to be mowed more frequently than other fields. Wagener noted that An Act Concerning Pollinator Health was adopted during the 2016 legislative session; among other provisions it directs the Connecticut Agricultural Experiment Station to produce information for landowners on pollinator habitat. It also authorized the Department of Transportation to encourage the use of pollinator friendly plants and practices on its properties. Chair Merrow said the same legislation expanded limitations on certain uses of pesticides suspected of being harmful to pollinators. Kolesinskas added that there are many excellent resources, from the federal government and other states, for promoting pollinator-friendly habitats. Wagener said the website of the Experiment Station is also a good source. Kolesinskas said the new act allows for inclusion of pollinator-friendly practices in the conservation plans on farmland for which the state acquires development rights. Both Kolesinskas and Dunbar noted that cutting times can vary depending upon which species the owner wished to encourage, and whether a field is being used as a hayfield. After discussion, the consensus was to write to the MDC to commend its efforts to date and to encourage additional progress.
Others (Citizen Comment Period)
Chair Merrow acknowledged Ms. Susan Masino, who was in the audience but had missed the citizen comment period at the beginning of the agenda. Ms. Masino said she had come to speak about two topics 1) renewable energy facilities and 2) invasive Phragmites (Common Reed). Ms. Masino said that in the drive to expand renewable energy sources, the importance of energy conservation must not be forgotten. She also said that she would like to see more distributed energy projects and more use of solar thermal.
With regard to Phragmites she described the aggressive nature of the plant statewide and its proclivity for taking hold in areas of construction and soil disruption. It can grow to a height of 18 feet and can spread by seed or by its roots. Kolesinskas noted that a private landowner troubled by it can apply to the Natural Resources Conservation Service (NRCS) to get help with control. He said that vigilance and cleaning of earth moving equipment is an important control method; Dunbar concurred. Ms. Masino agreed and said that the Departments of Transportation in the Great Lakes region have begun those practices. Hilding asked if it was predominant in certain parts of Connecticut. Ms. Masino said that it is everywhere but its presence is most evident along the shoreline and wherever development is occurring. Kolesinskas said that UConn had created an invasive-species database a while back, but was not sure of its status with budget reductions. He said it might be time to update it with inclusion of areas where Phragmites occurs. He said that a conference on invasive plants is planned there in October; Ms. Masino noted that Wagener is scheduled to speak, and hoped that he could address this. Hall said that Yale School of Forestry has been successful keeping Phragmites out of its indigenous grass fields and it would be worth inquiring about their techniques.
Environmental Study of Change of Use of Watershed Lands in New Britain
Chair Merrow asked Wagener to bring the Council current on what had occurred in this matter since the July meeting. Wagener said that the Council’s July 27 decisions had been communicated to the Water Planning Council (WPC), which held a special meeting on August 12 to discuss the correspondence from the Council. He said there were many people in attendance including, from the Council, Hearn and Hilding. He spoke at the meeting to answer questions about the Council’s position. The WPC made no change in its acceptance of the consultant, Lenard Engineering, Inc. (LEI), but urged LEI to meet with the Council to assure that the items which the Council found deficient in the LEI scope of study were incorporated into it. A copy of the WPC’s letter to the City of New Britain was distributed in advance of the meeting.
Mr. Paul Zagorsky, a resident of New Britain who spoke at the July meeting was in the audience and asked to speak. He handed out a photo of the existing Tilcon Quarry along with a copy of his correspondence to the WPC (which the Council had prior to the meeting). He contended that the City of New Britain and LEI had provided misleading and incorrect information about the project since the onset. For the study to be independent, neither Tilcon nor New Britain should be involved in it. Mr. Zagorsky said that WPC members had asked LEI if the scope of study had been amended, and LEI had replied that it had not. Chair Merrow thanked him for his comments and asked if there were any questions. Hall urged expeditious action by the Council in meeting with LEI, given the financial and contractual commitments that have been made. The willingness of the Council to engage needs to be documented in written communication to New Britain, Tilcon, LEI and the WPC. Dunbar agreed and said the Council should make its expectations clear.
Mr. James Ericson asked to speak from the audience. He introduced himself as a licensed PE and Vice President of LEI. He said that LEI is willing to modify the scope of work as needed and is willing to meet at a mutually convenient time. Hall urged creating a timeline for goals and continuing communication with submission of a work product with sufficient time for the Council to review and discuss. Hilding agreed. Chair Merrow asked the Council to consider the best structure for meeting and communicating with the City and LEI. In response to a question from Hall, Reiser said that expansion of the scope of work is not uncommon in consulting. Mr. Ericson concurred noting that a thorough study with an enhanced scope could nevertheless arrive at conclusions about which the parties disagree. In response to a question from Charamut, he confirmed that the Council’s letter to New Britain, outlining what it would like to see in an expanded scope of work, had been shared with LEI.
Hall said she had confidence in the Council’s staff to negotiate changes to the scope of work, but would like the Council to see the revisions. Wagener said the staff would not engage in a negotiation but would communicate the Council’s concerns. Dunbar expressed the need for the study to identify the environmental costs of the project.
Mr. Zagorsky said that an artificial sense of urgency has been created about this study by New Britain. Also, in response to a question from Chair Merrow as to whether there were problems he saw in the scope of study that were not mentioned in the Council’s July 29 letter, Mr. Zagorsky said that Tilcon should not be part of the scope of study.
Hall restated the importance of allowing the Council sufficient time to review the revised scope of work. Hilding said the study needs to define the time horizon that will be considered in analyzing the possible environmental impacts.
Chair Merrow outlined the procedure which the Council wishes to see followed: 1) staff will meet with LEI, 2) LEI will create a new scope of work, and 3) the new scope will be sent to the Council with sufficient time for review. Hall said, allowing for sufficient time for LEI to draft a new scope and then to get it to the Council in time for a thoughtful review, meaning at least two weeks prior to the meeting, will mean that the document will not be available for discussion before the October Council meeting. Hilding asked if the public would be able to review the revised scope. Mr. Nick Neeley of the Public Utilities Regulatory Authority staff who works with the WPC spoke from the audience to say that the WPC had set up a docket for this study which is available on the WPC’s website where all relevant documents can be posted for all to see. Wagener said all Council correspondence has been and could continue to be posted to the docket. Hall said that out of fairness to LEI, sufficient time must be allowed for LEI to produce a revised scope of study. She offered the following motion:
A letter be sent from the Council to the City of New Britain, the Water Planning Council and Lenard Engineering (LEI) informing them that the Council had significant discussion at its meeting, enhanced by the presence of Mr. James Ericson, and that Council staff will meet with a representative of LEI to discuss the scope of study for the New Britain Water Department’s environmental study including suggestions that had been made by the Council in its letter of July 29, 2016; this would be followed by LEI making changes, based on the Council’s concerns, to the scope of study. LEI should present the revised scope of work to Council staff for distribution to the Council for review no later than two weeks before a scheduled Council meeting at which it will be discussed, provided final discussion will not be earlier than the Council’s October meeting.
Dunbar seconded the motion which was approved unanimously. Mr. Ericson said he is looking forward to the meeting and would be in contact to set a date. Chair Merrow thanked all the speakers for their participation.
Review of State Agency Actions
a. State Energy Policies that lead to loss of agricultural land and core forest.
Using PowerPoint and handouts prepared for the discussion, Wagener explained how a proposal for a solar farm can go from concept to final approval. The chart showed the “decision points” in the process. He explained the different routes that could be taken and distinguished among ”tiny” LREC, ZREC, shared solar projects, virtual net metering projects, medium-to-large projects that are selected for procurement through a DEEP Request For Proposal (RFP) and those that are not selected, as well as miscellaneous projects such as the ones constructed in Norwich by the public utility.
Wagener said staff had met with representatives of DEEP and the Connecticut Siting Council (CSC) in August to review the siting process for solar projects and to explore incentives to shift siting away from important forests and farm soils. He said there appeared to be little enthusiasm for legislation to guide siting away from forests and farms. He said the agencies’ representatives said better guidelines and planning tools could be used to steer projects to better locations. He said there was agreement that brownfields would be good locations and Council staff plans to meet with a representative with the Department of Economic and Community Development (DECD) to pursue this further.
Wagener said that the issue of locating renewable energy sources on farms and forests has been in the news, resulting in a number of suggestions from the public on ways to deal with that problem. He showed a slide listing possible policy options, including some suggested by the public. Discussion followed, with consensus that the construction of renewable energy facilities on important natural resource lands will continue until consideration of the importance of those resources is given greater weight than allowed now. At present, location decisions are driven almost entirely by the cost of delivering the electricity. Kolesinskas said it is analogous to suburban sprawl; it is nearly always cheaper to build on undeveloped land.
Members discussed the potential for allowing solar as a temporary use of preserved farmland. In response to a question from Chair Merrow, Kolesinskas said that would depend on the configuration and construction techniques of the panels, trenches, roads and drainage. He said a big question is what incentive would exist to convert back to farm use if a greater profit is being generated from the solar installation. He said that placement on forest land eliminates or reduces the carbon-absorption role that is played by trees and soils. Hilding asked what is known about microclimate impacts of a solar farm compared to other uses. Dunbar said that the issue warrants prominence in the Council’s Annual Report.
Members agreed that it would be worthwhile to investigate how other states have solved the problem. Members discussed the pros and cons of incentives and statutory improvements, with Hall and Dunbar agreeing that the Siting Council criteria are an important area for more work.
Hilding asked if the CSC can overrule local zoning. Wagener said it could, but it must consider local input.
Wagener said Council staff will schedule a meeting with DECD staff to discuss the issue further.
b. Other State Actions
Wagener recalled that the Council had submitted comments to DEEP on the proposed extension of the General Permit for Control of Industrial Stormwater some time ago, stating that a two-year extension is too long in light of changes that need to be made. DEEP recently approved the extension for two years and said that if a revised permit can be adopted in less than two years it will replace the extended one.
Wagener reported that the Office of Policy and Management approved the Record of Decision for the South Campus project at the University of Connecticut (UConn) that involved demolition of some historic structures, but is requiring completion of the mitigation measures before demolition may be started. He said he had not seen previously a Record of Decision that required mitigation to be complete before proceeding with further work.
There being no further business, Chair Merrow asked for a motion to adjourn; Charamut made the motion which Hilding seconded and the meeting adjourned at 12:21 PM.