Regulating Tree-Cutting

Cutting on Wetlands and Other Preserved Land Connecticut’s preserved lands are under siege, according to, Preserved But Not Protected, a recent report by Connecticut’s Council on Environmental Quality (CEQ). The most common problem is illegal tree-cutting, but there are many other illegal actions to conservation lands owned by the state, municipalities, land trusts and other private entities. While evidence for encroachment of public and preserved land is easy to document there is a lack of legal recourse available to defend against them. Below are two articles on a recent Connecticut Supreme Court case involving the illegal cutting of 340 trees in wetlands on land owned by the East Haddam Land Trust and The Nature Conservancy. Both articles and CEQ’s Special Report are instructive for both Inland Wetlands and Conservation Commissions.

	CT DEP Victorious before the State Supreme Court: Mellon Tree-Cutting Subject to CEPA Relief. By Assistant Attorney General Janet P. Brooks
	The Habitat Fall 2005 Damages for Wetlands Violations: Lesson from Ventres v. Mellon, by Mark K. Branse, Esq; The Habitat, Fall 2005
	Preserved But Not Protected, Connecticut’s Council on Environmental Quality; 2005 Special Report .
	Funding "Third Party" Inland Wetlands Technical Experts CACIWC has received numerous requests for information on the how commissions can legally contract with a “third party” technical expert to review development applications at the expense of the applicant. Below are two articles with information to assist commissions in making a decision regarding “expert witnesses”: Who Pays the Piper . . . Funding Professional Reviews in Wetlands Applications, by Mark K. Branse, Esq, and, Errors as a matter of fact: trouble with experts, in Connecticut’s Inland Wetlands and Watercourses: Permit Denials, by the Connecticut Attorney General’s Office.
	Who Pays the Piper . . . Funding Professional Reviews in Wetlands Applications, by Mark K. Branse, Esq
	Errors as a matter of fact: trouble with experts, in Connecticut’s Inland Wetlands and Watercourses: Permit Denials, by the Connecticut Attorney General’s Office. Excerpt from The Habitat, Fall 2004

URGENT! CT DEP Inland Wetland Agency Advisory

Cautionary Not
Public Act 04-209 does not amend the definition of “Wetlands” or “Watercourses” as noted in sections 22a-38(15) and 22a-38(16) of the IWWA. The inclusion of aquatic, plant or animal life and habitats in wetlands and watercourses is limited in application to section 22a-41 of the IWWA. Therefore, the DEP is only modifying section 10 of the IWWMR because such is the only section of the IWWMR relevant to the factors for consideration as noted in section 22a-41 of the IWWA. Municipal Inland Wetlands Agencies should not propose any amendments to the definitions of wetlands or watercourses as a result of Public Act 04-209. Please see DEP Advisory below.

To: Connecticut’s Municipal Inland Wetlands Agencies
From: Yvonne Bolton, Acting Bureau Chief
Bureau of Water Management
Date: November 29, 2004
Re: 2004 Legislation and Regulations Advisory

The 2004 Legislature amended section 22a-41 of the Inland Wetlands and Watercourses Act (IWWA) with the passage of Public Act 04-209. The changes involve the consideration of aquatic, plant or animal life in the factors for consideration. Public Act 04-209 was signed by the Governor and went into effect on June 3, 2004.

To assist Municipal Inland Wetlands Agencies in amending their regulations, we are providing the Public Act language with the suggested revisions to the Inland Wetlands and Watercourses Model Regulations (IWWMR).

Inland Wetlands Agencies should plan to revise their regulations in the near future to conform to the new statute. The provisions of Public Act 04-209 govern until such time that your municipal regulations are amended.

Please note that new text has been underlined.
Public Act 04 –209 – An Act Concerning Jurisdiction of Municipal Inland Wetlands Commissions
This Public Act has amended section 22a-41 of the IWWA with the addition of new subsections (c) and (d) to read as follows:

(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.

(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.

In order to conform to these revisions, the following changes to the IWWMR are made:

1. Section 10.5 of the IWWMR is deleted and replaced with the following: 10.5 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.
2. A new section 10.6 of the IWWMR is added to read as follows: 10.6 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.
3. A new section 10.7 of the IWWMR is added to read identical to the language of the prior section 10.5 of the IWWMR as follows: 10.7 In reaching its decision on any application after a public hearing, the Agency shall base its decision on the record of that hearing. Documentary evidence or other material not in the hearing record shall not be considered by the Agency in its decision. A conclusion that a feasible and prudent alternative does not exist does not create a presumption that a permit should be issued. The applicant has the burden of demonstrating that his application is consistent with the purposes and policies of these regulations and sections 22a-36 to 22a-45, inclusive, of the Connecticut General Statutes.

Should you have any further questions regarding the above changes, please feel free to contact the Wetlands Management Section. You can call the Wetlands Management Section at (860) 424-3019 or write to us at: Department of Environmental Protection, Inland Water Resources Division, 79 Elm Street, Hartford, CT 06106-5127.

GRASSROOTS EFFORT SUCCESSFULLY OVERCOMES OPPOSITION TO WETLANDS BILL

Public Act 04-209: An Act Concerning Jurisdiction of Municipal Inland Wetlands Commissions.

CACIWC, Inc. asked Gregory A. Sharp, an environmental lawyer and partner in the law firm of Murtha Cullina LLP, to provide an analysis on the impact of the legislation on Inland Wetlands Commission deliberations. Attorney Sharp’s article was reviewed by David H. Wrinn, Assistant Attorney General in the Environment Department of the Office of the Attorney General. The article by Attorney Sharp does not constitute a legal opinion. Local agencies should always consult with land use counsel as to particular situations. Visit the Public Act 04-209 Information Page to download the full text of Attorney Sharp’s analysis, P.A. 04-209 language, and a summary of the environmental coalition’s successful grass roots effort.

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 44

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:

1. maintaining an adequate supply of surface and ground water;
2. maintaining the existence of many forms of animal, aquatic, and plant life;
3. maintaining and improving water quality; and
4. providing natural habitats for a diversity of fish, other aquatic organisms, wildlife, and vegetation.

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:

1. a proposed activity's environmental impact on wetland or watercourses;
2. the applicant's purpose for, and any feasible and prudent alternatives to, the proposed activity, that would cause less or no environmental impact to wetlands or watercourses;
3. the relationship between the short- and long-term impacts of the proposed activity on wetlands or watercourses and the maintenance and enhancement of their long-term productivity;
4. irreversible and irretrievable loss of wetland or watercourse resources that the proposed activity would cause and any mitigation measures to (a) prevent or minimize pollution or other environmental damage, (b) maintain or enhance existing environmental quality, or (c) restore, enhance, and create productive wetland or watercourse resources;
5. impacts of the proposed activity on wetland or watercourses outside the area for which the activity is proposed; and
6. future activities associated with, or reasonably related to, the proposed activity which are made inevitable by the proposed activity and which may have an impact on wetlands or watercourse resources.

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.

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