I’m still coming off of the grammar- and punctuation-high from the Supreme Court’s decision in Indian Spring Land Company v. Inland Wetlands and Watercourses Agency, which was officially released on July 5, 2016. The Supreme Court clearly states three times in the decision that the plain language of section 22a-40 (a) (1) provides that road construction directly related to a farming operation is excluded from municipal wetlands oversight.
It is clear that Indian Spring Land Company is free to construct its bridge (the footings of which will not be located in wetlands) and to put gravel fill in several vernal pools in order to construct its road – all without a wetlands permit.
What is the take-away message for future farmers who will be constructing roads in wetlands and watercourses? Alas, that’s not so clear. At the end of the decision the Supreme Court explicitly affirms its decision in Taylor v. Conservation Commission, 302 Conn. 60 (2011), stating “section 22a-40 (a) (1) does not permit the filling of wetlands for the purpose of road construction, regardless of the road’s relation to the farming operation, because the statute clearly provides for the regulation of activities that require wetlands to be filled.” Then, it narrowed its holding in the Indian Spring Land Company case:
“In conclusion, the plain language of section 22a-40 (a) (1) provides that road construction directly related to a farming operation is excluded from the regulatory oversight of municipal wetlands agencies, unless the manner of that construction implicates some other matter within the scope of that oversight, as in Taylor. Accordingly, the agency had no jurisdiction to attach special conditions to the plaintiff’s gravel access road into the northeast compartment, as the road was to be constructed solely for the purpose of transporting equipment onto the property to complete forestry work. We therefore conclude that the trial court improperly that the trial court improperly determined that the agency had jurisdiction over the plaintiff’s access road and improperly rendered judgment dismissing the plaintiff’s appeal.” (Emphasis added.)
It’s time to pull out the Taylor decision and compare apples to apples, or in this case, gravel road to gravel road. Two of the three roads proposed in Taylor as “necessary for vehicle/tractor access to the central crop of Highbush Blueberry” and as “necessary for vehicle/tractor access to the nursery crop production” are located in wetlands. Taylor, 302 Conn. 60, 62-63 (2011). The Taylor farm roads will be constructed with gravel. Taylor, 302 Conn. 60, 66 n.8 (2011). The Indian Spring Land Company road will be constructed with gravel and will fill “several vernal pools.” In Taylor the gravel road will be constructed and fill wetlands and in Indian Spring Land Company the gravel road will be constructed and fill a watercourse.
What exactly is the difference in the manner of construction between the Taylor scenario and the Indian Spring Land Company one? The Supreme Court did not identify one.
My currently Lyme-addled brain cannot see a difference in “manner of construction.” Gravel fill to gravel fill. If gravel fill was subject to wetlands agency jurisdiction in Taylor why isn’t that same gravel fill in Indian Spring Land Company subject to agency jurisdiction? The Supreme Court explicitly stated there is a difference in the manner of construction. But there’s no "there" there. The manner of construction is the same: gravel is used to construct a road.
The Supreme Court could have examined a different phrase in the farming exemption which differentiates between filling of wetlands and filling of watercourses with continual flow. That is, the exemption does not allow within the exemption filling of wetlands or watercourses with continual flow. Thus, it would seem that filling of watercourses that are not of continual flow could fall within the exemption. If the only resources to be filled with gravel in Indian Spring Land Company are vernal pools, perhaps then the gravel fill would fall within the exemption. However, there are too many unknown facts: are the vernal pools surrounded by wetlands? Do the vernal pools have continual flow?
Evidently the parties did not make those arguments and the Supreme Court did not rule on that basis.What’s an agency member to do when faced with a farm road proposal directly related to the farming operation? Those who believe the proposal before the agency is similar to Taylor will rely on that case and require the farmer to get a permit. Those who believe the proposal is similar to Indian Spring Land Company will rely on that case and find the proposed construction exempt. And both sides will be right . . . at least until the next Supreme Court decision is issued which we can hope will straighten out whether gravel is gravel is gravel