| Legislature Addresses AvalonBay Decision | |
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CONSIDERATION OF WILDLIFE RESTORED, LOCAL COMMISSIONS LIMITED PUBLIC ACT 04-209: AN ACT CONCERNING JURISDICTION OF MUNICIPAL INLAND WETLANDS COMMISSIONS GRASSROOTS EFFORT SUCCESSFULLY OVERCOMES OPPOSITION TO WETLANDS BILL ANALYSIS OF PUBLIC ACT 209, AN ACT CONCERNING JURISDICTION OF MUNICIPAL INLAND WETLANDS COMMISSIONS Consideration of Wildlife Restored, Local Commissions Limited Gregory A. Sharp, Esq.(1) The General Assembly has responded to the Supreme Court’s controversial decision in AvalonBay (2) last October by amending §22a-41of the General Statutes to specifically include aquatic, plant and animal life and their habitats within the meaning of wetlands or watercourses in the factors for decision-making under the Inland Wetlands and Watercourses Act (“IWWA”). (3) However, the bill also limits the jurisdiction of municipal wetland agencies to deny or condition an application for any regulated activity outside of wetlands or watercourses based on an impact to biotic resources, “unless such activity will have a likely impact or effect on the physical characteristics of such wetlands or watercourses.” (4) For the full text of the Public Act, see the sidebar on this page. In AvalonBay, the Supreme Court concluded that the IWWA “protects the physical characteristics of wetlands and watercourses and not the wildlife, including wetland obligate species, or biodiversity.” (5) The Court explained that a wetlands agency “may regulate activities outside of wetlands, watercourses and upland review areas only if those activities are likely to affect the land which comprises a wetland, the body of water that comprises a watercourse or the channel and bank of an intermittent watercourse.” (6) The case involved a denial of regulated activities outside the wetlands, watercourses and regulated review area of the Town of Wilton in connection with the applicant’s effort to construct an affordable housing project. According to the Supreme Court’s decision, the sole stated reason for the commission’s denial was the impact to the upland habitat of the spotted salamander, a species which breeds in vernal pools.(7) The commission decided that the impact to the upland habitat would reduce the population of the spotted salamanders and thereby reduce the biodiversity of vernal pools on and off the property. AvalonBay’s appeal to the Superior Court was dismissed based on the Supreme Court’s decision in Queach, (8) but the Supreme Court reversed the judgment of the trial court with an order to vacate the commission’s denial and remand the matter to the commission with direction to issue a declaratory ruling that the plaintiff’s plan did not require the issuance of a permit. (9) The breadth of the Supreme Court’s language in AvalonBay prompted the Department of Environmental Protection (“DEP”), the Office of the Attorney General, and a coalition of environmental groups, including the Connecticut Association of Conservation and Wetlands Commissions (“CACIWC”) to seek a legislative response to the decision. The goal was to put protection of plant and animal species and their habitats back into the statute and restore commission’s ability to regulate these resources under the Act to the extent allowed prior to AvalonBay. (10) However, a coalition of the Connecticut Homebuilders Association and affordable housing advocates fought the Department’s bill, resulting in the compromise limiting the authority of local wetland agencies, but not the DEP Commissioner, to deny or condition applications for upland regulated activities. The resulting Public Act returns the scope of a commission’s purview to where it was before AvalonBay, at least insofar as the new §22a-41(c) recognizes that impacts to aquatic, plant and animal life and their habitats within the wetlands and watercourses must be considered in rendering a decision. As Senator Williams said in support of the bill on the floor of the Senate: “The goal of the legislation is to bring us to the point where most practitioners believed that we were prior to AvalonBay.” It is also clear that if the impacts to the biotic resources arise from regulated activities within the wetlands and watercourses, a commission is free to deny or condition an application on the basis of those biotic impacts, regardless of any impacts to physical characteristics. It also seems clear in the aftermath of AvalonBay, particularly in view of the “physical characteristics” language codified in the new §22a-41(d), that if the regulated activity is not in the wetlands and watercourses area, then a denial or conditioning of an application for biotic impacts will only pass judicial muster if there are likely impacts to the physical characteristics of the wetland or watercourse. Commissions may be troubled by the application of the new §22a-41(d) to upland review areas defined by a duly adopted regulation under §22a-42a(f), as many commissions in the past have treated these areas, rightly or wrongly, as “setbacks” in which no significant activity would be allowed. In the absence of a prohibitory regulation, such as the one upheld by the Supreme Court in Lizotte, (11) it appears that, under the new statute, even if the activity proposed would have adverse impacts on biotic resources within the regulatory upland review area, the commissions may not deny or condition an application on the basis of those impacts unless there are impacts to the physical characteristics of the wetlands and watercourses themselves. Finally, the new legislation became effective upon passage, which in this case is June 4, 2004 when Governor Rowland signed it. It appears that the legislature intended the law to apply to new applications submitted after the effective date, but, to the extent that the new subsection (c) language concerning biotic resources is a clarification, that language may be construed by a court to be applicable retroactively. The legislative history on the issue is not entirely clear, and a court may ultimately have to decide the question. The individual facts of an application will obviously have a significant bearing on how this new language will be implemented. Obviously, in a specific case, guidance should be sought from the commission’s attorney, the Office of the Attorney General or the DEP on how the new law should be interpreted. (1) The author is an environmental lawyer and partner in the law firm of Murtha Cullina LLP. He is a frequent contributor to The Habitat, and was a member of the CACIWC/DEP Task Force which worked on a proposed definition of “vernal pool” and identification criteria for inclusion in the Model Inland Wetlands and Watercourses Regulations. (2) AvalonBay Communities, Inc. v. Inland Wetlands Commission of the Town of Wilton, 266 Conn. 150 (2003) (3) Public Act 04-209. (4) Id. (5) AvalonBay, 266 Conn. at 163. Id. AvalonBay , 266 Conn. at 170-71. (6) Queach Corporation v. Inland Wetlands Commission, 258 Conn. 178 (2001). (7) AvalonBay, 266 Conn. at 170-71. (8) Queach Corporation v. Inland Wetlands Commission, 258 Conn. 178 (2001). (9) AvalonBay, 266 Conn. at 171. (10) __ S. Proc., Pt. __, 2004 Sess., p. __. ( April 29, 2004). For an unofficial transcript, consult the General Assembly Website: www.search.cga.state.ct.us. (11) Lizotte v. Conservation Commission , 216 Conn. 320 (1990). PUBLIC ACT 04-209: AN ACT CONCERNING JURISDICTION OF MUNICIPAL INLAND WETLANDS COMMISSIONS. Be it enacted by the Senate and House of Representatives in General Assembly convened: Section 1. Section 22a-41 of the general statutes is amended by adding subsections (c) and (d) as follows (Effective from passage): (NEW) (c) For purposes of this section, (1) "wetlands or watercourses" includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) "habitats" means areas or environments in which an organism or biological population normally lives or occurs. (NEW) (d) A municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses. Approved June 3, 2004 GRASSROOTS EFFORT SUCCESSFULLY OVERCOMES OPPOSITION TO WETLANDS BILL Legislature passes Public Act 04-209: An Act Concerning Jurisdiction of Municipal In response to the AvalonBay Supreme Court Decision a coalition of environmental organizations led by CACIWC, worked with staff from the Department of Environmental Protection and the Attorney General’s Office to develop legislative language that would reinstate jurisdiction of Municipal Inland Wetland and Watercourse agencies to consider impacts to fish, other aquatic organisms, wildlife and vegetation dependent on those resources for their existence. This resulted in Senate Bill 445, An Act Concerning Jurisdiction of Municipal Inland Wetlands Commissions. Over the course of the 3 month legislative session S.B. 445 encountered strong opposition from the CT Home Builder’s Association and affordable housing advocates. Negotiations were very difficult. Ultimately Public Act 04-209 evolved. Passage of P.A. 04-209 successfully restored aquatic, plant or animal life and habitats as elements of commission consideration in regulating activity in wetlands and watercourses—factors that were taken away by the AvalonBay decision. While sole consideration of these factors was limited to wetland and watercourses we believe the Act was a first step in the right direction. An extensive grass roots campaign implemented by the environmental coalition was crucial to the Acts passage. Many of you supported the campaign by letting your legislators know you supported the intent of the legislation. We collectively thank you for your support. We also thank Senator Donald Williams, Co Chair of the Environment Committee, for sponsoring S.B. 445 and for providing the leadership and counsel for guiding the bill through the various committees. We also thank Representative Patricia Widlitz, Co Chair of the Environment Committee, for her support and last minute successful effort to have the bill passed in the House as the session was winding down. Finally we greatly appreciate the dedication, support and close working relationship we had with staff of the Department of Environmental Protection and Office of the Attorney General and thank Attorney General Richard Blumenthall and DEP Commissioner Arthur Rocque for supporting their efforts. It was a productive partnership which we will continue to foster. The environmental coalition included: CT Association of Conservation and Inland Wetland Commissions (CACIWC), CT Fund for the Environment, CT League of Conservation Voters, CT Audubon Society, Audubon-CT, CT Council of Environmental Quality, Quinnipiac River Watershed Partnership, and the Connecticut Conservation Association; Other supporting groups included: CT Rivers Alliance, CT Forest and Park Association, Housatonic Valley Association and Land Conservation Coalition of Connecticut. ANALYSIS OF PUBLIC ACT 209, AN ACT CONCERNING JURISDICTION OF MUNICIPAL INLAND WETLANDS COMMISSIONS. By: Kevin E. McCarthy, Principal Analyst, Office of Legislative Research Made in response to a request for information on the court case that prompted SB 445 and how the bill changed as it went through the legislative process. SUMMARY SB 445 was introduced in response to Avalonbay Communities, Inc. v. Wilton Inland Wetlands Commission, (266 Conn. 150 (2003)). This case was brought after the town of Wilton denied a developer an inland wetlands permit for a housing development. Although the development was located in an uplands area, the town found that it might harm a species that relies on wetlands for part of its life cycle (a wetlands obligate species) and would reduce the biodiversity of the wetlands. The developer appealed the decision, arguing that the Inland Wetlands and Watercourses Act (CGS § 22a-36 et seq. ) protects wetlands from physical damage or intrusion, but does not protect obligate species and other wildlife. The trial court dismissed the appeal and the developer then appealed to the Supreme Court. The Supreme Court agreed with the developer's argument. Noting that the act's definitions were narrowly drawn, the Court ruled that the act protects the physical characteristics of wetlands and watercourses but not their wildlife or biodiversity. The Court also noted that while the act requires the commission to consider "irreversible and irretrievable loss of wetland or watercourse resources, "it does not define "resources." In response to this decision, the Environment Committee raised SB 445. In its original form, the bill authorized wetlands agencies, when regulating activities in uplands areas, to regulate activities affecting the biodiversity of wetlands and watercourses, as well as activities affecting the wetlands or watercourses themselves. The committee subsequently added a definition of "wetlands and watercourses resources" subject to the wetlands agencies' jurisdiction. The substitute bill defined this term broadly, to allow agencies to address a proposed development's impact on a wide range of wetlands functions, including the protection of wildlife and biodiversity. The Senate amended the bill to define the agencies' jurisdiction in more general terms. The amendment also added a provision to bar an agency from denying or imposing conditions on an application to conduct a regulated activity in an uplands area based on its effect on aquatic, plant, or animal life or habitats in the wetlands unless the proposed activity will likely affect the physical characteristics of such life or habitat in the wetlands or the wetlands themselves. The Senate and House passed the amended bill, which became PA 04-204. COURT CASE In 1999, AvalonBay proposed building an apartment complex in an uplands area near wetlands in Wilton. The application went to the town's wetlands commission, which has limited jurisdiction over developments in uplands areas that may affect wetlands. The commission denied permission to build the project, saying construction would destroy the upland habitat of the spotted salamander, a species that relies on wetlands for several weeks each spring. The commission reasoned that this would harm the biodiversity of the wetlands. AvalonBay appealed, claiming that the Inland Wetlands and Watercourses Act protects wetlands from physical damage or intrusion, but does not protect wildlife that might rely on the wetlands for a portion of its life cycle.The trial court dismissed the appeal and the developer appealed to the Supreme Court. The Supreme Court agreed with the developer. Noting that statutory definitions "are narrowly drawn and limited to physical characteristics, "the Court ruled that the act "protects the physical characteristics of wetlands and watercourses and not the wildlife...or biodiversity. " The Court specifically noted that while the act requires commissions to consider "irreversible and irretrievable loss of wetlands or watercourse resources," the statute (1) does not specify what those resources are, and (2) does not refer to such resources in defining wetlands and watercourses. SB 445 Public Hearing and Substitute Bill The attorney general, the Department of Environmental Protection (DEP), and others viewed the decision as too narrow a reading of the Inland Wetlands and Watercourse Act. In response to the decision, the Environment Committee raised SB 445. In its original form the bill authorized wetlands agencies, when regulating activities in areas around wetlands or watercourses, to regulate activities affecting the biodiversity of wetlands and watercourses, including obligate species, as well as activities affecting the wetlands or watercourses themselves. The committee heard this version of the bill on March 1, 2004. DEP, the attorney general, the Connecticut Association of Conservation and Inland Wetlands Commissions, and several environmental groups testified in favor of the original bill. Several witnesses spoke in favor of the bill's intent,but said it should be rewritten to address the court's concerns regarding the lack of definition of wetland resources. The Home Builders Association of Connecticut, Inc. (HBA) and an attorney who represented AvalonBay before the Supreme Court were among those who testified against the bill. OLR memo 2004-R-0616 describes the arguments made at the hearing. At DEP's recommendation, the committee redrafted the bill to define the wetlands resources subject to the wetlands agencies' jurisdiction. The substitute bill defined this term broadly, to allow agencies to address a proposed development's impact on a wide range of wetlands functions. These include, among others:
The Environment Committee favorably reported the substitute bill on March 5, 2004. The Senate referred it to the Planning and Development Committee, which reported it favorably on April 7, 2004. Senate Amendment and Public Act A number of interested parties, notably the HBA, raised concerns about the substitute bill. As a result, legislators, DEP, HBA, environmental groups, and others entered into negotiations that led to Senate Amendment "A. " The amendment, which replaced the substitute bill, defines "wetlands or watercourses" to include aquatic, plant, or animal life and habitats in wetlands or watercourses. The amendment defines "habitats" to mean areas or environments in which an organism or biological population normally lives or occurs. Under the amended bill's definitions, wetlands agencies, when regulating, licensing, and enforcing activities under the Inland Wetlands and Watercourses Act, must take into account aquatic, plant or animal life and habitats in wetlands and watercourses when considering:
On the other hand, the amended bill bars a wetlands agency from denying or imposing conditions an application to conduct a regulated activity outside a wetlands area on the basis of its impact or effect on aquatic, plant, or animal life or habitats in the wetlands unless the proposed activity will likely impact or affect the physical characteristics of such life or habitat in the wetlands or the wetlands themselves. The Senate adopted the amendment and passed the amended bill on May 5, 2004. The House passed the amended bill on the same day, and the governor signed PA 04-209 on June 3, 2004. Home :: CC :: IWC :: Tools :: About CACIWC ::Publications :: Support CACIWC :: Links :: Legislation :: Events |