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Rivers Alliance
Connecticut's United Voice for River Conservation

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Litchfield, CT 06759
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Legal Watch

News About Streamflow

Stormwater  

Challenge To Water Secrecy Laws

After-the-Fact Applications

The Clean Water Act Post Rapanos

A Scary Takings Case

Lethal Cooling

Greenhouse Gas Emissions

Cooling Water Decision

Can Hydropower Dams Be Regulated?

Wetlands in the Balance

Stormwater Hearing

The Department of Environmental Protection held a public hearing Thursday, June 23rd, on the renewal with modifications of the Stormwater General Permit involving construction activities. Roger Reynolds of the Connecticut Fund for the Environment (CFE) and Bill Ethier of the Home Builders Association of CT are interveners. If you wish to submit comments on the Stormwater General Permit for construction activities, the deadline is this Friday, July 1st.
Please direct written comments to Kenneth M. Collette, Hearing Officer, Department of Environmental Protection, Office of Adjudications, 79 Elm Street, Hartford, CT 06106-5127. These written comments may be submitted by post, facsimile to (860) 424-4052, or by electronic mail to kenneth.collette@ct.gov and should also be copied to Christopher Stone (Christopher Stone, P.E., Department of Environmental Protection, WPED/Bureau of Materials Management and Compliance Assurance, 79 Elm Street, Hartford, CT, 06106-5127. A copy of your written comments may be submitted by post, facsimile to (860) 424-4074, or by electronic mail to chris.stone@ct.gov).

A fact sheet and more information regarding the general permit can be found on CT DEP's website: http://www.ct.gov/dep/cwp/view.asp?A=2586&Q=476258.
It is important that we speak out for the protection of water and endangered species. Construction industry voices are being heard loud and clear, and we need to make sure that voices for the protection of water resources are being heard as well.

Below is a brief summary of concerns:

We are most concerned with two aspects of the permit. First, high quality water resources (examples include drinking water supplies and cold water trout streams) will receive a lesser level of protection and a lower performance standard than impaired water resources. Other states have applied the same high standard to both. Failure to do so creates the perverse incentive for people to develop greenfields rather than brownfields, the opposite of what needs to be happening.

In addition, we are concerned that there is no requirement for mitigation, or a fee that would be sufficient to cover the cost of mitigation, if a developer claims that they are unable to meet the relevant performance standard. Instead, the General Permit would require a lengthy engineer's report that will take substantial DEP resources (that they do not have) to refute and will do nothing to protect the impacted resources. Requiring mitigation would simplify and streamline enforcement and ensure that the resource is actually protected by the developer. This is exactly the type of regulatory scheme that Commissioner Esty has espoused and the DEP should implement.

At the same time, the homebuilders have been very vocal and have sought to remove the protections for Endangered Species and to eliminate a requirement for review by the Conservation Districts (as you recall this was the subject of failed legislation this year (HB 6400)). DEP needs to hear from us.
In general, while we believe the outreach draft makes significant improvements in the regulation of construction stormwater, further action is needed to safeguard the state's waters. We are happy to see that DEP is one of the states moving forward in a fairly serious way with incorporating principles of Low Impact Development into their stormwater permits. That being said, the state must do so in a way that properly protects high quality water resources and has clear, easily understandable and enforceable requirements that create the appropriate incentives. It must also avoid rollbacks to Endangered Species Act protection and Conservation District review.


Archived alerts (previous years)

Mar 1, 2011: AMAZINGLY BAD BILL designed to wipe out streamflow regulation

The Commerce Committee 's  Bill No. 1020 An Act Concerning Water Resources and Economic Development went to Public Hearing on February 24. 

THANKS TO ALL OF YOU WHO CALLED OR EMAILED OR PROVIDED TESTIMONY!    It is posted on the CT General Assembly website.  If you do not know how to access this, please email us (rivers@riversalliance.org.)    

The Committee will now schedule a meeting to vote on the bill.  All that is required is one day's notice.   So we must assume it might happen any time.   

It would be very helpful if you would get in touch with any or all of the Committee members.  The idea that flowing, clean rivers actually benefit the economy is somewhat new to many of the members of this committee.  And this is a highly important committee.  For two years it has been the incubator of anti-environment bills advertised as jobs bills. We need to do more to help legislators to understand that the economy of Connecticut will benefit by upon conservation and promotion of its natural  beauty, clean environment, and rich water resources.    Trash these assets, and you trash the very qualities that draw people to the state. 

Below is a repeat of some of the reasons Bill 1020 is so harmful.  More important, there is a list of the Committee members with their towns.  If you are a constituent or know a parched stream in a legislator's district, be sure to say so. 

Bill 1020 gives the Department of Economic and Community Development (DECD) and the Department of Agriculture veto power over provisions to protect river flows in Connecticut.  It is a masterpiece of loophole architecture providing diverters with dozens of reasons why they need not comply.   It renders the flow regulation unenforceable. Bill 1020 turns back the clock, and requires the DEP to re-start the process of classifying streams and setting standards.  It sets out a process so complex and burdensome that it will not be finished in less than several decades and will not protect any stream that anyone might want to alter or divert for any money-making purpose. 

               CONTACT INFORMATION FOR MEMBERS OF THE COMMERCE COMMITTEE

Sen. Gary LeBeau, Chairman, East Hartford , 860-240-0511, LeBeau@senatedems.ct.gov

Rep. Jeffrey Berger, Chairman, Waterbury ,  860-240-8500, Jeffrey.Berger@cga.ct.gov

Sen. Joseph Crisco, Vice-Chair, Woodbridge , 860-240-0189,   Crisco@senatedems.ct.gov

Rep. Gregory Haddad, Vice-Chair, Chaplin & Mansfield, 860-240-8500, Gregory.Haddad@cga.ct.gov

Sen.  Scott Frantz, Ranking Member, Riverside, 860-240-8800, Scott.Frantz@cga.ct.gov

Rep. Fred Camillo, Ranking Member,  Greenwich, 800-842-1423 (within CT), 860-240-8700  Fred.Camillo@housegop.ct.gov

Rep. Brian Becker, West Hartford, Avon, Farmington  , 860-240-8585   Brian.Becker@cga.ct.gov

Rep. Christopher Coutu, Norwich , Canterbury , 800-842-1423 (within CT), 860-240-8700  Christopher.Coutu@housegop.ct.gov

Rep. Anthony D’Amelio, Waterbury & Middlebury, 800-842-1423 (within CT), 860-240-8700, Anthony.DAmelio@housegop.ct.gov

Rep. Linda Gentile, Ansonia & Derby , 860-240-8585, 1-800-842-8267, or 203-732-8386, Linda.Gentile@cga.ct.gov

Rep. Ed Jutila, East Lyme & Salem , 1-800-842-8267, 860-240-8585, Ed.Jutila@cga.ct.gov

Sen. Kevin Kelly, Monroe , Seymour , Shelton , Stratford , 800-842-1421, Kevin.Kelly@cga.ct.gov

Rep. Selim Noujaim, Waterbury , 800-842-1423 (within CT), 860-240-8700, Selim.Noujaim@housegop.ct.gov

Rep. Elaine O’Brien, Windsor , E. Granby , Suffield, 860-668-1305, 860-240-8585, or 800-842-8267, Elaine.OBrien@cga.ct.gov

Rep. Chris Perone, Norwalk , 203-840-1643 or 800-842-8267, Chris.Perone@cga.ct.gov

Rep. Ezequiel Santiago, Bridgeport , 203-345-5976 or 800-842-8267, Ezequiel.Santiago@cga.ct.gov

Rep. Sean Williams,  Watertown & Woodbury,  800-842-1423 (within CT) or 860-240-8700, Sean.Williams@housegop.ct.gov

Rep. Bruce Zalaski,  Southington,  860-620-9231 or 800-842-8267, Zeke.Zalaski@cga.ct.govv

 

Lethal Cooling

In a 2nd Federal Circuit Court decision, issued January 25th, the Court rejected key parts of a 2004 EPA rule that allowed power plants and other industrial plants to continue to use once-through-cooling technology that causes massive fish kills. The new ruling in a case brought by six states (including Connecticut) the Riverkeeper Network and a number of conservation organizations requires EPA to reconsider the rule and the environmental benefits of closed-cycle cooling to meet the environmental goals of the Clean Water Act and to avoid the killing up to a trillion fish per year.  Thanks to David Conrad of the National Wildlife Federation and Rep. Terry Backer of Soundkeeper, who participated in this important work and brought the decision to our attention.

 

A Scary Takings Case

On March 9, a Superior Court ruling in New London held that the Conservation Commission of East Lyme had appropriately denied an application for a residence on a 4,954 square foot parcel containing wetlands.  The Commission denied the application on the basis that the negative effects would cause an irreversible and irretrievable loss of wetlands.  But Superior Court also found that the denial constituted a taking of the property.  The parcel is a pre-existing, nonconforming lot.  The developer had scaled back the project considerably, without avoiding the negative impacts, and the Commission noted that no prudent or feasible alternative existed to the application. 

The Court found this to be a practical confiscation of the plaintiff's property.  Additional defendants were the Town of East Lyme and the Connecticut Department of Environmental Protection.  Thanks to our director Dwight Merriam for bringing this case to our attention.  It is titled Guy Turgeon v. Town of East Lyme Conservation Commission et al.

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The Clean Water Act Post Rapanos

In our last newsletter, we reported on the U.S. Supreme Court's somewhat puzzling ruling in the Clean Water Act case Rapanos v. U.S.. The Court split 4-4 on the question of whether waters not in fact navigable are covered by the Clean Water Act.  In the circumstances, a separate concurring opinion by Justice Anthony Kennedy offered hope for the large expanses of wetlands and streams traditionally protected under the Act.  Justice Kennedy ruled that federal protections apply where one can show a "significant nexus" with navigable waters. 

Connecticut river advocates were dismayed by a U.S. District Court's ruling in January that the Metacon Gun Club in Simsbury was not liable under the Clean Water Act for lead shot deposited in a floodplain zone, vernal pool and wetlands, which plaintiffs claimed flowed directly into the Farmington River.  The relative good news is that the plaintiffs did not attempt to use Justice Kennedy’s "nexus" criterion, but evidently assumed that the Supreme Court plurality decision (anti-wetlands) governed.  Possibly Simsbury-Avon Preservation Society et al v. Metacon Gun Club will be appealed or otherwise clarified.  The U.S. Court of Appeals for the First Circuit in U.S. v. Johnson came to much happier conclusion in October that one can apply either the Supreme Court's restrictive criteria or Justice Kennedy's more expansive 'significant nexus' test.

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After-the-Fact Applications

Wetlands commissioners hate after-the-fact applications.  Someone does regulated work without a permit, and then applies for approval afterward, often after being caught.  Dwight Merriam sent along a case that should be reassuring for commissioners faced with such vexing circumstances.  In Wishnafski v. Columbia IWC, the Superior Court in Tolland found in October that the wetlands commissioners in Columbia were within their rights to deny an after-the-fact application for a patio nearly twice the size as the one approved. 

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Cooling Water Decision

In a 2nd Federal Circuit Court decision  issued Thursday January 25, 2007,  the Court has rejected key parts of a 2004 EPA rule that allowed power plants and other industrial plants to continue to use once-through-cooling technology though it results in massive fish kills. The new ruling in a case brought by six states, the Riverkeeper Network and a number of conservation organizations requires EPA to reconsider the rule and the environmental benefits of closed-cycle cooling to meet the environmental goals of the Clean Water Act and to avoid the  killing up to a trillion fish per year.  

A number of organizations are parties to this important lawsuit, including: Riverkeeper, Inc., National Wildlife Federation, Natural Resources Defense Council,  Waterkeeper Alliance, Soundkeeper, Scenic Hudson, Save the Bay -- Narragansett Bay, Friends of Casco Bay, American Littoral Society, Delaware Riverkeeper Network, Hackensack Riverkeeper, New York / New Jersey Baykeeper, Santa Monica Baykeeper, San Diego Baykeeper, California Coastkeeper, Columbia Riverkeeper, Conservation Law Foundation, and Surfrider Foundation

States joining conservation organizations were Rhode Island, Connecticut, Delaware, Massachusetts, New York, and New Jersey.  Congratulations and thanks for carrying this forward! 

Click here to read the full text of the decision. Return to top of page

Court Gets Feet Wet

 Can Hydropower Dams Be Regulated?

In S.D. Warren Co. v. Maine Board of Environmental Protection, the Court took up the question of whether under the CWA the operation of a hydroelectric dam could result in a discharge (water over the dam) requiring compliance with a state's 401 water quality certification program.  This issue is extremely important in Connecticut, where, the Department of Environmental Protection has relied on the certification program to protect rivers, even while federal protections are weakening.  Under section 401 of the CWA, federal licenses issued for activities that may result in a discharge into navigable waters require a state certification that the state's water quality standards will not be violated by the discharge.  To ensure the standards are not violated, states may impose conditions on the activity in their certification that are then incorporated into the federal license.  The Court's decision to review the S. D. Warren case this case came as a surprise to many (environmentalists and regulators at state and federal agencies alike) who considered a state's right to impose water quality conditions on federal hydroelectric licenses a foregone conclusion.   The central argument made by the petitioner, S.D. Warren Company, was that its hydroelectric operation, consisting of five dams and power canals on the Presumpscot River in Maine, did not result in a discharge under the CWA (the term "discharge" is used, but not defined, in the CWA).  Consequently, S.D. Warren argued that their hydroelectric operation did not trigger section 401 and the conditions imposed on their operation by the State of Maine (which included maintaining a minimum stream flow, meeting specified dissolved oxygen levels, and providing fish passage) lacked legal authority.  Unfortunately for S.D. Warren, the United States Supreme Court unanimously disagreed with this line of reasoning.In an opinion written by Justice David H. Souter, the Court held that the water going over a hydro dam was indeed a discharge that could be regulated under CWA, thus triggering section 401 and the state water quality certifications.  Essential to the Court's holding was its adoption of the ordinary and natural meaning of the word discharge (to flow or issue out) as derived from dictionary definition.  Adopting the ordinary and natural meaning of a word is a canon of  statutory interpretation when a term is neither defined by the governing statute, nor a term of art.  The Court relied on this definition despite S.D. Warren's arguments that a more narrow definition was warranted.  Rivers Alliance joined in an amicus brief with the National Wildlife Federation and other environmental organizations cited by the Supreme Court in its decision.


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Wetlands in the Balance

In two consolidated cases involving wetlands, the Court was far more divided and the outcome was ominous for protection of streams and wetlands.  The cases, Rapanos v. U.S. and Carabell v. U.S. Army Corps of Engineers, involved the scope of federal authority to regulate private land use pursuant to the CWA.  At issue in both  Rapanos and Carabell was whether privately owned wetlands not adjacent to navigable-in-fact waters are covered by the CWA.  Since the enactment of CWA in 1972, it has been interpreted to cover almost all wetlands and streams, although the Act in fact refers to navigable waters (the traditional public trust resource).  The reasoning has been that wetlands, ground water and small streams all are essential to the prudent maintenance of navigable waters.  These cases challenged that reasoning.This issue sharply divided the Court.  Indeed, although five Justices agreed that the case should be remanded to the lower court for further consideration, a majority of the Court could not agree on a rationale for the lower court to apply.Referring to the Army Corps of Engineers as an "enlightened despot," Justice Antonin Scalia set a stern tone for the plurality opinion he authored, joined by Justices Samuel Alito, Clarence Thomas, and Chief Justice John Roberts.  Scalia's pivotal argument suggested the CWA protects fewer waters than previously articulated by the Court.  Particularly, Scalia interpreted the phrase "the waters of the United States" to "include only relatively permanent, standing or flowing bodies of water."   And, referring to wetlands, Scalia suggested that the CWA only covers "those wetlands with a continuous surface connection to" the aforementioned "waters of the United States." In contrast, the dissent, in an opinion authored by Justice John Paul Stevens and joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer, found the Army Corps interpretation of the CWA  permissible.  Due to the split in the Court, Justice Anthony Kennedy's concurring opinion - which takes an analytic middle road - will be the most influential on the lower courts.  Kennedy proposed that lower courts apply a "significant nexus" test to waters or wetlands not adjacent to navigable-in-fact waters.   According to Kennedy's reading of the CWA, only those waters or wetlands that "posses a 'significant nexus' to waters that are or were navigable in fact or that could reasonably be so made" are covered.  Wetlands have the requisite significant nexus when "the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters."  Kennedy believes that because the current Army Corps of Engineer regulations are too broad, the Corps must demonstrate a significant nexus on a case-by-case basis.  The final outcome can be considered a win for wetlands for the time being.  Kennedy suggested that the wetlands at issue in both Rapanos and Carabell likely had the requisite significant nexus, but the facts necessary to establish that nexus needed to be presented to the lower court on remand.  Meanwhile, at the federal level, environmental advocates are lobbying for the Clean Water Authority Restoration Act, which would amend CWA to clarify that it covers all public trust waters.  (Many Rivers Alliance members and friends have responded to our appeals to contact members of Congress to urge support of this bill.)  At the state level, our laws in Connecticut are quite strong.  Nevertheless , the state laws are somewhat weakened in effect by the difficulty of enforcement at the local level, and now this challenge to the underlying federal law. 

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Rivers Alliance of Connecticut
PO Box 1797, 7 West Street 3rd Floor, Litchfield, CT 06759-1797
860-361-9349
rivers@riversalliance.org, www.riversalliance.org