In response to the CT Supreme Court’s decision in AvalonBay Communities v. Inland Wetland Commission of Wilton, 266 Conn. 150 (2003), the state DEP and environmental groups pushed hard to overturn the decision through the legislature in 2004. What began as one of the worst bills in the state legislature and most difficult challenge faced by the HBA in many years ended up as another stunning victory for the residential construction industry.
Regulated activities occurring outside a wetland or watercourse (i.e., in an upland review area or even beyond an upland review area) can be considered by local inland wetland commissions under the six statutory factors for decision making (Conn. Gen. Stat. Sec. 22a-41) as long as the activity is “likely to have an impact or affect on the wetland or watercourse.”
In the Wilton case, the local commission denied a permit to the housing developer due to impacts only on the upland habitat of the spotted salamander and without any impact on nearby wetlands. The state Supreme Court overturned the denial and ruled in favor of the developer. The HBA of Connecticut had filed a friend-of-the-court brief in the state high court on behalf of the regulated community.
The Wilton decision held that local jurisdiction under the act includes consideration of the activity’s impacts to the “physical characteristics of wetlands or watercourses” but that this does not include impacts to “wildlife … or biodiversity.” The court reasoned that extending jurisdiction to include impacts to wildlife and biodiversity would mean limitless jurisdiction because jurisdiction could travel on the back of wildlife as far outside wetlands as it could go. In this decision, however, the Court failed to distinguish between impacts to wildlife in a wetland or watercourse versus wildlife outside such areas. It was this failure that led most legislators to believe that, while the result in the Wilton case was correctly decided, the opinion needed some correction.
The original raised bill that went to a public hearing, and to which the HBA of CT strongly objected, is reprinted below to show how bad it was. It amended 22a-42a(f), the enabling statute for adopting local regulations to review activities outside of wetlands. New language proposed by the bill is underlined.
“RB 445, 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. Subsection (f) of section 22a-42a of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):
(f) If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses, and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses or the biodiversity of such wetlands or watercourses, including wildlife species that are dependent on such wetlands or watercourses.”
At the public hearing before the legislature’s Environment Committee on this bill early in the session, the state Dept. of Environmental Protection (“DEP”) announced for the first time that its “working group” on this issue had substitute language that addressed any overreaching in the original raised bill. Despite assurances made to the HBA just a few weeks prior to the session by two environmental organizations that the HBA would be included in any discussions to legislatively fix the Wilton decision, the existence of this working group was never revealed to the HBA or others in the regulated community until the public hearing on the original bill.
The substitute language proposed by DEP and its “working group” was passed by the Environment Committee just four days after the public hearing, an unusually short period of time between a public hearing and committee passage of a bill. As we did with the original bill, the HBA strongly objected to the substitute language. See our talking points on the RB445.
This substitute language did not correct the overreaching of the original bill and was in many ways worse than the original bill. It proposed changing Connecticut General Statutes, Section 22a-41, the section of the inland wetlands and watercourses act that outlines the six factors for making decisions on permit applications. It expanded authorized municipal review of development activities from “impacts to wetlands or watercourses” to “impacts to wetland or watercourse resources.” The bill then created an extremely broad definition of such resources. If the proposed new definition, underlined here, had been adopted it would have meant that local wetland commissions could regulate any proposed development activity if it had an impact on … “wetlands or watercourses and their related aquatic or wildlife habitats and … the following functions as set forth in section 22a-36: Maintaining an adequate supply of surface and underground water; maintaining hydrological stability and controlling flooding and erosion; recharging and purification of groundwater; maintaining the existence of many forms of animal, aquatic and plant life; maintaining and improving water quality; preventing damage from erosion, turbidity or siltation; providing natural habitats for a diversity of fish, other aquatic organisms, wildlife and vegetation; deterring and inhibiting the danger of flood and pollution; and protecting the state's potable fresh water supplies from the dangers of drought, overdraft, pollution, misuse and mismanagement.”
The environmental community undertook a massive grass roots campaign to get the legislature to adopt the bill that was passed by the Environment Committee as is without any amendments.
However, over the course of the following two months, the HBA of Connecticut was able to convince more and more legislators that the bill was an unreasonable overreaction to the Wilton decision and that it greatly expanded the jurisdiction of local wetlands commissions. At the same time, the HBA was able to build a coalition of other interest groups to oppose the bill and undertook its own grass roots campaign, reaching out to both HBA members, the industry at large, landowners across the state as well as municipal economic development leaders and a number of reasonable inland wetland commission members and staff who agreed with the HBA’s concerns.
In the face of relentless pressure from proponents of the bill, the HBA’s progress to kill or change the bill was slow and frustrating. But the force of reason and strong legislative leaders who agreed with our position won the day.
With just a few weeks to go in the legislative session, the HBA was finally invited in to discuss the bill with DEP in the presence of legislative leaders. After many hours of difficult negotiations, the final bill emerged. It passed the Senate with one week to go in the session and then the House with only 80 minutes to go on the last night of the session, May 5.
The final bill speaks for itself and is reprinted below. Transcripts of the floor debates in the Senate and House are very instructive in interpreting the bill. If there is any doubt about what is intended by this new law, see these Senate and House transcripts and provide a copy to local commissions and town counsel. The courts use these transcripts if necessary to determine legislative intent in interpreting state statutes.
The bill that passed makes clear that impacts to wildlife and their habitats in wetlands and watercourses can be considered by local commissions. But it is virtually impossible to impact wildlife without first impacting some physical characteristic of the wetland or watercourse and these impacts have been regulated since the statute was first created over thirty years ago.
Significantly, the new law also provides an express limitation on denying or conditioning permits for activities based on impacts to wildlife outside a wetland or watercourse unless such activities have a likely impact or affect on the physical characteristics of such wetlands or watercourses. Therefore, contrary to some press reports and some environmental group and local inland wetland commission member claims on this legislation, the new law codifies the important limitations on local commissions from the Supreme Court’s Wilton decision.
The HBA was able to turn what would have been new statutory authority to review and deny development activities far away from wetlands and watercourses into a clear limitation on regulating activities outside these areas. The new law, Public Act 04-209, An Act Concerning Jurisdiction of Municipal Inland Wetlands Commissions is effective June 3, 2004 (the date the Governor signed the bill). It amends section 22a-41 by adding subsections (c) and (d), underlined below.
“Section 22a-41(a) In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
(1) The environmental impact of the proposed regulated activity on wetlands or watercourses;
(2) The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses;
(3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses;
(4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (A) prevent or minimize pollution or other environmental damage, (B) maintain or enhance existing environmental quality, or (C) in the following order of priority: Restore, enhance and create productive wetland or watercourse resources;
(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and
(6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses.
(b) (1) In the case of an application which received a public hearing pursuant to (A) subsection (k) of section 22a-39, or (B) a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefore shall be stated in the record in writing.
(2) In the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which have less adverse impact on wetlands or watercourses, the commissioner or the inland wetlands agency, as the case may be, shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subdivision shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity.
(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."
For any questions about this or other state legislation impacting the home building, remodeling or land development industries, please contact the HBA of CT office.