Willis bill aims to prevent repeat of Canaan Mountain clearing 

HARTFORD – Two and a half acres of preserved state forest worth more than $1.1 million. That’s what prompted State Rep. Roberta Willis to raise a bill to strengthen enforcement against violations of timber destruction in state forests.

Willis thought she had created a solution for the problem of clear-cutting or encroachment on state, town or protected land when her bill, which became Public Act No. 06-89, passed in 2006.

But then BNE Energy, an energy company looking to build wind turbines on top of Canaan Mountain, cut down nearly 3 acres of heritage trees in the Housatonic State Forest instead of nearby private land. And the act, which offers penalties including fines up to five times the reasonable value of the trees or restoration of the land to its prior condition, was ignored.

Instead of referring the issue to the state’s attorney general for prosecution, Department of Energy and Environmental Protection Commissioner Daniel Esty signed a consent order allowing the company to escape the conflict with a $10,000 fine and five years of monitoring for invasive species.

The slap-on-the-wrist penalty BNE received did not fulfill what Rep. Willis and Sen. Richard Blumenthal had intended when the original bill was proposed.

“When I first did the legislation on encroachment on state or preserved land, the purpose was to ensure that land was restored if damages were done – they could get the property back to where it once was and the penalties were up to five times the value of the trees, so they were pretty stiff,” Willis explained. “But the problem was the case of Canaan Mountain, which was never referred to the attorney general. DEEP believed that they had the ability to do a consent decree so they went ahead and settled for what people feel was a lot less than warranted by the kind of destruction done.”

The Berkshire Litchfield Environmental Council has been protecting Canaan Mountain from developers, utility companies and the state since the 1970s, its president Starling Childs said, and when the forest was damaged by BNE, the group took up the fight.

BLEC filed suit against the DEEP commissioner, charging that Esty side-stepped the law in issuing the consent order and that the settlement with BNE should be thrown out. Attorney General George Jepsen adamantly defended the DEEP action and BLEC was denied.

The group filed an appeal in December of 2013.

“It has dragged on,” Childs said. “The court ruled in favor of the attorney general’s argument. They narrowly interpreted the statute and the fact that we had brought this action, rather than addressing the environmental crime that had been committed.”

Now, Childs said, the swath of forest that was cut in 2010 has become a kind of “beachhead for invasive species.” Though monitoring for invasive species is part of the consent decree, it does not require BNE to take corrective action if any is found.

“It’s trying to regrow but it’s pretty much a patch of scrub, grass and some invasive plants have moved in because it’s opportunistic and the deer carry the seeds in their droppings…” Child said. “The clear-cutting created the conditions for non-native plants to move in since they have a “no management requirement.” It’s just been shrugged off.”

Childs said BLEC continues to press the issue of the BNE settlement out of concern that the case will set precedent for environmental violations throughout the state.

“Routinely, someone thinks ‘These trees are in the way. I’m just going to cut them down.’ It happened with the East Haddam Land Trust. The owner of the airport didn’t like the tall pines so he hired some guys. Since he didn’t take the trees, there was no law that would cause punitive damages,” Child said. “If you drag them away, you commercialize the trees.”

The East Haddam incident was one of the reasons Willis authored the original encroachment act.

“It was happening more and more all over the state,” Childs said. “Attorney Blumenthal said ‘This is stupid. We need a law that has teeth.’ They thought that they had a statute that the attorney general and state’s attorney’s office would take into consideration.”

So BLEC approached Willis about a new bill.

“We’ve asked Roberta if it said ‘may’ or ‘could’ or ‘might,’ let’s make it ‘must’ because otherwise people will just continue to cut trees and laugh at you. Those guys did it with three acres in the most protected forest in Connecticut and just walked away, so clearly there’s no law to protect the trees,” Childs said.

House Bill 5710, was heard recently at an Environmental Committee public hearing – a good sign for the legislation’s progress toward approval. But in the process, language of the bill was also changed to put the matter entirely into the hands of the DEEP commissioner. BLEC would like to see any encroachment violation rather be overseen by the attorney general. If a case were to be settled out of court, the group would like to see a public hearing mandated that would allow for environmental groups and landowners to be heard and considered.

“The hope is that the legislation would require some sort of public hearing before a decision is handed down and that the public be made aware of it,” Childs said.

“As a member of the Environment Committee I remain committed to continuing the fight to prohibit those who would illegally encroach and damage in any way open-space land that is so important to our region of the state,” Willis said.

Willis reported Wednesday that language revisions had been made and the bill approved in a vote by the Environmental Committee on Wednesday.