East Hampton Inland Wetlands & Watercourses Agency
Special Meeting/Workshop
March 19, 2008
Eaton E. Smith Meeting Room - Town Hall
Unapproved Minutes
1. Call to Order: Chairman Foran called the meeting to order at 6:30 p.m.
Present: Chairman Jeffry Foran, Vice-Chairman Joshua Wilson (6:38 p.m.), Members David Boule, Alannah Coshow, Dean Kavalkovich, Marc Lorah, Peter Wall, and Alternate Members Maureen Heidtmann and Scott Hill were present. The Town Attorney, Janet Brooks (6:56 p.m.), Building Department Administrator, James Carey, and Town Planner, David Dodes, were also present.
Not Present: All members present.
2. Discussion:
a. Fertilizer Ordinance: The Agency discussed concerns received from the Town Council relating to the draft ordinance. Chairman Foran addressed the concerns relating to Section 1.07.1. The Agency believes the draft ordinance addresses the concerns of the Town Council. Mr. Carey discussed the issues related to enforcement of this ordinance. Chairman Foran reported that Scotts Fertilizer’s most popular line will be phosphorous free in two years. He has spoken with the owners of Paul’s & Sandy’s who have
indicated they are very connected to the Lake and carry zero phosphorous containing fertilizer. The Agency agreed to leave Section 1.07.1 as is in the ordinance.
Chairman Foran addressed concerns with Section 1.07.2. He again stated that the businesses in Town have indicated to him that they will have no problem providing zero phosphorous containing fertilizer. The Agency discussed changing the word “shall” to “encouraged” or “should”. They determined that the section was fine as it was written.
Chairman Foran discussed the concerns with Section 1.08. Mr. Carey stated that this concern was not accurate and not to be concerned with it.
Mr. Carey and the Agency Members discussed enforcement and the measures that would be taken to enforce violations and the process that would be followed upon violation. Mr. Carey offered to given the Agency a presentation at some point on how the enforcement of these types of violations proceed. Chairman Foran requested that Mr. Carey provide the Town Council with the Agency’s response to the Town Council’s recommendations.
*Attachment 1*
Mr. Foran moved that the draft fertilizer ordinance, as discussed here, be forwarded to the Lake Commission and the Town Council for adoption. Mr. Wilson seconded the motion.
The Agency discussed the need for education and the one-year waiting period before the ordinance will be effective.
The Chairman called for the vote. The motion carried unanimously.
b. Zero Phosphorous Loading Regulation with Ken Wagner and Janet Brooks: Dr. Wagner was not in attendance. Mr. Carey explained that Dr. Wagner is working on grant for the State to propose phosphorous regulation in addition to the work that the Town has been doing on a similar regulation.
Chairman Foran explained that the Agency has been attempting to hold all new and re-development to a zero increase in phosphorous loading. Their goal is to get this standard down to a net decrease.
Mr. Wilson reported that he was in attendance at the Connecticut Conference on Natural Resources at UCONN the previous week. One of the presentations was regarding the development of Total Maximum Daily Totals for lakes and bodies impaired by nutrient level. DEP is actively working on this.
Janet Brooks reported that she was able to read Dr. Wagner’s letter to David Dodes dated March 3, 2008 and understood that it encouraged the IWWA to establish procedures that support the process of improving and protecting Lake Pocotopaug. Attorney Brooks spoke with Chuck Lee of the DEP regarding this issue and was informed of a $50,000 grant that was awarded to the Town of East Hampton to enlist a specialist’s (Dr. Wagner) help in setting a standard for the total amount of phosphorous load. DEP would then consider this a fast track, high-priority item and would turn it over to EPA with a recommendation
*Attachment 2*
Attorney Brooks recommends that once this report, and Dr. Wagner’s findings, has gone to DEP and DEP has approved it, The IWWA could then develop a regulation for projects which are coming before the Agency. She further explained that in setting a standard now, before the report was finalized and recognized by the DEP, the Agency would need to adopt another regulation with expert testimony supporting it. To do this additional report now would be in addition to the funds that the State has granted for this very purpose. Attorney Brooks does not recommend that the Agency rely on Dr. Wagner’s assertions regarding State of Connecticut law and recommends that the ENSR report be used for the Agency’s expert testimony when writing the legislation.
Mr. Carey suggested that the Agency continue to address applications as they have been. Addressing each issue as it arises and obtaining expert testimony on each issue individually, there should not be a problem in waiting for the ENSR report to be approved by the DEP. It should not be uniformly applicable to everyone in the Town without being adopted as a regulation. Mr. Carey also discussed the enforceability of this goal. Mr. Carey committed to provide the time involved.
c. Reasons for Denial, Approval, & Building the Record for Legal Purposes with Janet Brooks and Ken Wagner: Dr. Wagner was not in attendance. Attorney Brooks distributed handouts for further review of the Members. Included are phrases which will not qualify for reasons for denial. She also distributed information to be considered in cases where environmental interventions come before the Agency. She clarified that there is no template for denying an application; however, there must be a legal basis for the decision based on any
impairment to the environment. She further explained the Agency must give a reasonable and prudent alternative if that is a reason for a denial.
* Attachments 3 & 4*
The Chairman recessed the meeting at 8:25 p.m.
The meeting was reconvened at 8:40 p.m.
3. Enforcement: Notice of Violation – Skyline Estates Phase I
Chairman Foran recused himself from the meeting at this time. Vice-Chairman Wilson was seated as Chair and seated Mr. Hill as a voting member.
Mr. Carey reported that the Skyline Estates site has suffered serious erosion control and stormwater runoff issues on three separate occasions this season. He has issued a Notice of Violation and asked the developer to come in and discuss the matter with the Agency. Mr. Carey described the failures of the stormwater detention system to the Agency.
A Notice of Violation was issued as opposed to a Cease and Desist Order because a Cease and Desist Order puts the onus on the Agency or its Staff to inform the violator how to correct the violation. Mr. Carey believes it is in the best interest of the Agency and the Town to allow the Permittee the opportunity to remediate the situation with the Agency’s oversight. Also, Mr. Carey does not believe it is in the best interest of any party to stop the work on this subdivision at this point. The work needs to continue to stabilize the area and increase the amount of temporary detention area.
The Agency discussed the situation at length. Mr. Carey explained that the contractor has actually gone above and beyond the requirements of the Wetlands Permit issued by this Agency and all comments from the third party inspector have been positive. This being said the project is not working as it was expected to. Untreated discharges directly into the watercourses were not anticipated.
Mr. Wilson discussed his observations of the site. He agrees that the Notice of Violation gives the Permittee the opportunity to resolve the problem and provide information regarding remediation to the Agency. It does not preclude the Agency from issuing a Cease and Desist Order at a later date.
Attorney Timothy Furey, 43 Bellevue Avenue, Bristol, Connecticut was present to represent the Permittee. He explained that they do not feel a violation is an appropriate measure. They do understand the concern but they believe they have been working with the Town Staff to resolve this problem. Attorney Furey submitted all the third-party inspection reports from September 2007 until the present. He also submitted a report from the third-party contractor on site, Dave Erlandson, outlining what has been done to remedy the issues on the site and working with the Town’s professionals. Attorney Furey explained that these basins have been designed to handle stormwater in excess of the amount required by the Agency’s Permit. The developer is committed to working
with the Agency, Town Staff, and Town professionals to ensure that the development is managed appropriately.
Mr. Carey confirmed that the developer has agreed to correct an unrelated issue at the Edgemere Condominium regarding a health code problem and the well fields. There is a cooperative effort on the part of the developer.
Attorney Furey read a letter to the Chairman of the IWWA from David Erlandson, P.E., D.W. Excavation, dated March 18, 2008 into the record.
Mr. Erlandson explained that the plans that both this Agency and the DEP approved require the storage of the first inch of a rainstorm. Beyond that first inch the detention basins will continue to rise but the additional discharge will flow through the orifices in the outlet structures into the tributaries of Christopher Brook. Mr. Erlandson explained how they have taken the additional measures to retain two to three inches of stormwater. He discussed in detail what has been done to date.
Adam Thompson, Registered Professional Engineer with LRC Group in Cromwell, Connecticut discussed the best management practices in place on this site. He explained that the recent storms have been so large that there is not the volume in the basins to contain the water even though they have exceeded the criteria of the plans as approved. They propose to further increase the amount of water being managed by cutting in another temporary settling basin. He described the plan in detail. He distributed a drawing of this plan.
Mr. Carey indicated that CLA has not seen this plan but he has discussed this situation in detail with Bob Russo and Tom Cummings of CLA. This approach is going in the direction that they believed would be necessary. This will provide more storage, adding as much settling time as possible.
George Logan, Soil Scientist, REMA Ecological Services, was present to discuss the systems in place and the plans for upgrading these systems. He proposes using a “Dirt Bag” in the process of pumping out any turbid water. The Dirt Bag has the capacity to filter out all the very fine sands and a portion of the silt. Mr. Logan described the Dirt Bag in detail. Mr. Carey stated that this methodology has been used and recommended by Bob Russo.
Attorney Furey discussed the Permittee’s interests in resolving this collaboratively without a violation on their record. He discussed the goals for the pumping practice and believes that the actions taken reduced the impacts of the stormwater. Mr. Furey clarified that the Permittee was required by the Permit to retain the runoff from a 1-inch storm. They have successfully managed two to three inches of runoff with the input of the Town and Town’s professionals. If the Town wants the Permittee to find a different resolution, the Permittee will follow the Town’s lead.
Mr. Carey stated that in issuing the Notice of Violation he acted appropriately to bring the matter to the Agency’s attention. He recognizes that the applicant makes a compelling argument and believes that it is in the Town’s best interest not to shut down this project. Whether a violation is issued on this site or not this meeting was very successful in that alternatives have been explored to further improve the site. He agrees that this job has been running as well as can be expected; however, he just cannot ignore the fact that when these rain events occur and inordinate amount of water goes off the site in a very rapid period of time. The remediation plans will be submitted to CLA for review.
Vice-Chairman Wilson moved that the Agency not find the Permittee in violation of the permit and that the Permittee work with Town Staff as discussed at this meeting to find other methods of further improving drainage from the site. Mr. Hill seconded the motion. The motion carried unanimously.
4. Adjournment: Mr. Kavalkovich moved to adjourn the meeting. Mr. Lorah seconded the motion. The motion carried unanimously.
The meeting adjourned at 10:06 p.m.
Respectfully submitted,
Daphne C. Schaub
Recording Secretary
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