Thursday, July 7, 2016

Farm roads exempt: Indian Spring Land Company v. Inland Wetlands and Watercourses Agency, part II

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

Saturday, July 2, 2016

Sentence structure and punctuation gain their 15 minutes of fame in recent Supreme Court decision

(begin listening to John Philip Sousa’s Stars and Stripes Forever, click here 

On this holiday weekend I will roll out a few posts on the Connecticut Supreme Court’s recent decision on the farming exemption in the wetlands act.  The advance sheets were released this week and the official decision will be issued July 5, 2016.

Farmers and grammarians will be waving their flags high in support of Indian Spring Land Company v. Inland Wetlands and Watercourses Agency.  (As the official copy has not yet been issued the citation for the case will not be available until July 5, 2016.)  In the first paragraph of its decision the Supreme Court tackled the difficult second sentence of the agricultural exemption and held: “road construction directly related to farming operations is permitted as of right under the Inland Wetlands and Watercourses Act . . . and, therefore, that the agency did not have jurisdiction to regulate the construction of the plaintiff’s access road.”  Clear and concise.

You may recall the farming exemption in C.G.S. § 22a-40 (a) begins:

(a): The following operations and uses shall be permitted in wetlands and watercourses, as of right: (1) Grazing, farming, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operation . . . The provisions of this subdivision shall not be construed to road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of top soil, peat, sand, gravel of similar material from wetlands or watercourses for the purposes of sale.

Ah, if “road construction or the erection of buildings not directly related to the farming operation does not fall within the exemption, exactly what does fall within in it?  The agency argued that the phrase “not directly related to the farming operation” only modified erection of buildings.  The Supreme Court definitively disagreed: “the plain language of the text of § 22a-40 (a) (1), as evinced by the legislature’s sentence structure and use of punctuation, makes it clear that road construction directly related to farming operations is exempt from the regulatory oversight of municipal wetlands agencies.”  And then it supported its decision citing the United States Supreme Court on sentence structure and the D. C. Circuit Court of Appeals on commas.

During the oral argument Justice Zarella took the lead on sentence structure and comma questions.  He appeared (to me) to be sitting on the edge of his seat peppering the town counsel with question after question about the use of “or” and the lack of a comma.  I could scarcely sit still and remain poker face in the audience.  In the previous road construction case which came before the Supreme Court, Taylor v. Conservation Commission, 302 Conn. 60 (2011), I made these same sentence structure and comma comments on behalf of the Connecticut Farm Bureau.  Alas, the Supreme Court in Taylor favored a Gertrude Stein approach: filling is filling is filling and requires a permit.

But the commas were soaring through the Supreme Court courtroom during the Indian Spring Land Company argument.  I stared hard at the ceiling mural to stay calm during the questioning.  I gazed at men bearing torches.  I later learned that in Albert Herter’s ceiling mural the torches represent the “Light of Education gained from the Book of Knowledge and Experience.” Yes!

Do you think I am mocking the reliance on sentence structure and punctuation?  I am not.  I spent my undergraduate years doing close readings of Roman poetry and writing papers where we had to mean what we say and say what we mean.

And in closing, before the piccolos are blowing their brains out at the end of “Stars and Stripes Forever,” what remained, from my perspective, was to determine if the Supreme Court would be implicitly or explicitly overruling the Taylor decision.  In a baffling “none-of-the-above” approach, the Supreme Court explicitly affirmed the Taylor decision. A close consideration of the facts in Taylor and Indian Spring Land Company leads only to a lot of head-scratching which we can do together in the next post.

Many thanks to the always-resourceful and helpful CT State law librarians, one of whom helped me locate the information on the ceiling mural in the Supreme Court courtroom in Visitor’s Guide: The Connecticut Supreme Court.

Tuesday, February 23, 2016

Do not go gentle into that DEEP good night: Raised Bill #141: Part V – Etc.

And the rest . . .

DEEP proposes to add a soil type, “hydric,” to the statutory list that has been in effect for four decades. Over the weekend I emailed five soil scientists who have each been active for decades in the state.  I asked: what is the problem and is this the appropriate solution?  No one had heard anything about this proposed change or knew why it was offered.  I contacted the president of the Connecticut Association of Wetlands Scientists (CAWS): they hadn’t been contacted.  One of the soil scientists I contacted reached out to the Soil Science Society of Southern New England (SSS SNE), the organization that certifies soil scientists.  They knew nothing about this.  The Connecticut Association of Conservation and Inland Wetlands Commissions (CACIWC) knew nothing of this.  CACIWC holds an annual meeting, issues a quarterly newsletter and holds monthly board meetings. DEEP could have used any of those avenues to communicate with those mostly closely affected by soil type changes. DEEP didn’t reach out to any stakeholder prior to proposing this bill. 

In 2016 DEEP proposes to add a new soil type without communicating to anyone affected by this change while simultaneously seeking to removal its own specific supervisory authorities in the wetlands laws.  What’s wrong with this picture? 

Enough for me not to have an opinion on whether it is appropriate or needed to add hydric soils to the jurisdiction of wetlands commission until all stakeholders have had a chance to consider the purpose and value of the proposal.

DEEP wants to synchronize public notice between state notices on wetlands applications for state agencies and other DEEP permit programs – who could raise a concern?  (Section 2 of Raised Bill #141.)  DEEP thinks that “renew” is a better word than “extend” in matters where the town agent is taking action – fine.  (Section 4 of Raised Bill #141 addressing CGS § 22a-42a (c) (2)).

To recap:

No to dismantling the oversight and enforcement functions that DEEP is assigned. Part II.

Not really to suing municipalities directly in lieu of DEEP oversight, but if it is going to be enacted, put the reference into the already existing court enforcement provision of CGS § 22a-44 (b). Part III.

No to eliminating the procedural requirements for amendments to wetlands maps. Part IV.

No to adding hydric soils to the definition of wetlands soils, until all stakeholders have been consulted. Part V.

No objection to changes in notice for permits processed by DEEP and an isolated word change. Part V. 

Do not go gentle into that DEEP good night: Raised Bill #141: Part IV - Wetlands Maps

Amendments to wetlands boundary maps: variations on a (statutory) theme

DEEP proposes in section three of Raised Bill #141, click here to read the bill or go to:,  to eliminate all of the procedure currently associated with map amendments, including: conducting a public hearing in certain timeframes, posting a copy of the amendments in the town clerk’s office for public perusal, stating at a meeting the reasons for the change(s), providing a copy of the changes to DEEP.

I suppose it depends on how you define the problem with maps to determine whether this proposal solves it or makes it worse.

What is the purpose of the municipal wetland map?  For commission members it is so they will know where the resources within their purview are located.  For land-owners wishing to develop their property it is so they can know how to plan their construction. For the rest of the community it is to know what areas come within the scrutiny of the commission. 

There are town wetlands commissions that follow the statutory procedural requirements for map amendments and their citizens are well-served with notice, opportunity to be heard and with reasons stated on the record for those changes.  To those towns, I say: go forth and multiply! 

And then there are the variations on the theme:  towns which don’t go through the official map amendment process and merely attach a soils map (performed by a certified soil scientist) to an application for a permit and never change the official map.  I have seen some towns do this ostensibly because of the cost of producing the oversized map sheets.  Some just got in the habit of letting the wetlands application morph into map amendment.  The unofficial, informal way seems so user-friendly and helpful, until . . .

One example:  Abutters to land which is being clear-cut call me for assistance to determine if this is a wetlands violation.  The abutters go to town hall and ask for a copy of the official wetlands maps of the area which they purchase.  It appears the clear-cutting is occurring on wetlands.  I speak to the agent for the municipal wetlands commission. He is a respected, experienced certified soil scientist himself.  He explains that a more accurate and recent soils map was produced in 1988 for a residential subdivision application that was denied.  The official map wasn’t amended, the subdivision application never was built – but somehow the soils map lived on, in some people’s memory, but is not provided when the official wetlands map is requested, because, of course, it isn’t the official wetlands map.  Twenty years later, another certified and experienced soil scientist examines the property and contacts the town agent.  They walk the property and agree in the field that there aren’t wetlands soils in a certain area.  The soil scientist writes a letter to the agent to confirm this.  As a result no application for a permit need be filed because the soil scientists in the field agreed the area contains no wetlands.

In this example, the most recent map amendment is not even a map, it is a letter stating the agreement between one soil scientist and the town agent that the soils map from 1988 no longer reflects current conditions.  The town commission had no input or role in adopting what the soil scientists agreed to out in the field.

Back to my earlier statement – What is the problem with map amendments?  To me the problem is when soil maps attached to applications are used in place of the official map amendment process.  The lack of formality translates into a lack of transparency which means there is not a common understanding of where the wetlands are located.

Viewed through that lens, I do not see the DEEP proposal as a solution.  Section 3 of Raised Bill #141 relaxes the official amendment process and doesn’t address the informal, unofficial, "extra-legal" process currently taking place in some towns.

To those who complain that it’s too cumbersome to hold two public hearings, one on the map amendment and one on the application for a wetlands application, I say: Process them both simultaneously -- hold a joint public hearing!

To those who complain of the cost of amending the official wetlands maps, I say: This is 2016.  Soil scientists are creating digital maps.  Receive maps in digital format.  The towns should maintain the maps digitally.

If there are still problems with the implementation of the formal map amendment process that lead towns to work around, i.e., deviate from the official map amendment process, form a task force of stakeholders to come up with a solution.  Full transparency, ease of access to official maps.  Surely, this can be solved.

Monday, February 22, 2016

Do not go gentle into that DEEP good night: Raised Bill #141: Part III: Sue your town!

DEEP isn’t just trying to go out the back door and leave the wetlands act to the towns to deal with.  No, it is balancing bowing out with creating the right for citizens to sue their towns in court.  See section 5 of Raised Bill 141.  Click here to read the bill or go to  Before DEEP turns out the lights, it’s going to open the door to the courthouse . . . for others to enter.  That prosecutorial discretion that I wrote of in the last post is also enjoyed by towns regarding enforcement of their land use and wetlands regulations.  DEEP proposes to curtail the towns’ prosecutorial discretion.

Sue your town!

DEEP’s proposal in lieu of statewide leadership and supervision is to wait for the town mistakes to pile up, “failure to perform [municipal] duties,” and have individual citizens sue their towns in court. Those citizens may be: applicants whose applications were not timely processed or landowners who find themselves with sediment in wetlands and watercourses on their own property from somebody else’s project where the commission has failed to require remediation.  Anybody who can identify a town’s failure to perform its duty under the wetlands act can file a lawsuit for equitable relief, i.e., court orders that the town do something.

Instead of oversight by a state agency which could require systemic change for commissions who consistently fail to carry out the wetlands law, DEEP is supporting a piecemeal lawsuit-by-lawsuit approach to wetlands enforcement in the state.  Unless the DEEP-proposed provision is moved to the currently existing enforcement provisions in the law, it’s not even clear citizens who take on that burden can seek their litigation costs back from the town.

There currently are provisions in the wetlands law pursuant to CGS § 22a-44 (b) where anyone can bring a suit against the actor violating the wetlands law.  And in those lawsuits they can ask the court for reimbursement of attorney’s fees, the cost of instituting the lawsuit, the cost of experts, etc.  and for the imposition of civil penalties.  

The difference with DEEP’s proposal is that the right to sue a town is in § 22a-42 (h), separate from the other court enforcement provisions in § 22a-44 (b).  It really should be in the same statutory section so that the right to apply for attorney’s fees and other substantial costs applies to suits against towns.

I bring those enforcement actions under § 22a-44 (b) currently.  Even if this bill is enacted, I would not bring a suit solely against the town for lack of enforcement. I would want the court to impose the relief directly to the person or entity who caused the environmental harm, not order the commission to impose remediation against a third party.

DEEP proposes a specific alternative for those hapless applicants in towns where the commission doesn’t act in a timely fashion – bring an appeal to court of the commission’s failure to timely act.  That’s another fine example of the cure being worse than the disease.  Perhaps DEEP is unfamiliar with the court system. 

Worst case scenario: the applicant’s lawyer drafts the appeal ($$), has a marshal serve the appeal on the town and DEEP (about $100), pays a filing fee with the court ($350), waits for the matter to appear on a calendar, agrees with the town attorney on what documents are part of the administrative record, briefs the matter, has oral argument, awaits a court decision.  Many thousands of dollars and many months, maybe over a year later, the court sustains the applicant’s appeal: the town commission missed the deadline.  

Medium case scenario: the applicant’s lawyer drafts an appeal ($$), has a marshal serve the appeal on the town and DEEP (about $100), pays a filing fee with the court ($350) and while awaiting the next steps in court, negotiates with the town to complete the untimely application.

In each scenario the applicant pays for the commission’s untimely action with more time lost and money expended.

Is this meaningful relief to the applicant?  If the applicant is going to lose time to a wetlands commission, why should it also have to lose more money?

To those of you who want more from your wetlands commission, DEEP is willing to give you the shirt off of your town’s back.  How is piecemeal litigation suing your town going to work out for those of you harmed by untimely town action or lack of town enforcement? 

How is it going to work out for you, CCM?

Do not go gentle into that DEEP good night: Raised Bill #141: Part II

The dismantling of the state oversight of municipal wetlands law implementation.

In this post I will focus on what DEEP proposes NOT to do and its willingness to give the shirt off – well, we’ll get to that in another post.  To begin, the first listed duty of the Commissioner in the statutes is to “exercise general supervision of the administration and enforcement of sections 22a-36 to 22a-45, inclusive.”  Connecticut General Statutes (CGS) § 22a-39 (a).  If DEEP has its way with this raised bill,  “general” supervision is all that will be left, since its specific authorities will have been voluntarily handed back to the legislature.

I don’t know how DEEP intends to exercise general supervision, but here is how they specifically intend not to do it:

1) eliminate DEEP authority to issue orders pursuant to § 22a-6 (unilateral orders) and § 22a-7 (cease and desist orders) of the general statutes where the municipality has failed to enforce its regulations or where, as currently established in CGS § 22a-44 (a).  See section 7 of Raised Bill #141.

2) eliminate DEEP authority to revoke the authority of a municipal wetlands commission which has “consistently failed to perform its duties under” the wetlands act, as currently established in CGS § 22a-42d.  See section 9 of Raised Bill #141.

3) eliminate DEEP authority to review and act on municipal applications where the agency or its agent failed to act within mandated timeframes, as currently established in CGS § 22a-42a (c) (1).  See section 4 of Raised Bill #141.

The current statutory scheme envisions DEEP as the backstop to deviant, outlier municipal action.  Where the town wetlands commission fails to enforce its own regulations, the citizens of that town won’t be harmed because DEEP can step in and issue the needed orders.  If that wetlands commission “consistently” fails to do its job, DEEP can remove the authority of the town to regulate its own wetlands and watercourses.  I’ve seen a handful of examples where DEP/DEEP stepped up and issued orders. They generally involved large, complicated sites where DEEP’s expertise could match the challenges the sites posed.

I was involved in the first instance that DEP began action to revoke a town’s authority in the late 1980s.  I had represented the DEP’s interest in a municipal wetland appeal brought to superior court.  I recall submitting a brief to court that the list of what the commission did wrong was so long it would be easier to list what it had done right.  This was a commission where the applications were kept at the chairman’s place of business.  To see the “public documents” you had to make an appointment during work hours to examine the application.  It went downhill from there.  The matter was resolved through education and modification of commission procedure.  That is a perfect example of how DEEP can play a very meaningful role in supervising municipal implementation of the wetlands law.

Both of these tools are seldom implemented.  The deterrent effect of these tools, however, is immeasurable.  It is always the Commissioner of DEEP’s discretion when to use these extraordinary tools.  And that discretion is not second-guessed by the courts.  When citizens have sued DEP/DEEP for failure to enforce environmental laws, the Attorney General’s Office has successfully defended DEEP.  Federal and state courts have deferred to DEEP’s “prosecutorial discretion” not to pursue enforcement.

If DEEP can choose to enforce (or not enforce) based on its staff and budget (or lack of them), why is a permanent dismantling of the state supervision of municipal implementation necessary or warranted?

As for the third issue.  I’ve always felt that the cure was worse than the disease.  You think that the town takes too long to process your application?  Just wait until you remove the application from the town and file it with DEEP where there are no there are no time limits.  No tears shed over this give-back.  Although, I do recall that the Bridgewater wetlands commission did refer an application to (then) DEP to process an application because the applicant had a suit pending in federal and/or state court against the commission and its individual commission members for action on a previous application.  That was a perfect solution.  The transfer to DEP eliminated legal claims of bias, etc.  I guess DEEP is well past looking for perfect solutions.

The next entry will be on DEEP’s proposed solution to the gap left by eliminating DEEP oversight.



Sunday, February 21, 2016

Do not go gentle into that DEEP good night: Raised Bill #141: Part I

I joined the Attorney General’s Office in October 1987 and surfed the wave that brought the Commissioner of DEP into the world of superior court appeals of municipal wetlands agency decisions with the major 1987 amendments to the wetlands act.  I helped write the model regulations at the beginning (late 1980s) and for the most recent edition in 2006.  I represented the Commissioner’s interest of uniform development of the state wetlands act in about 200 wetlands appeals over my 18+ years in the Attorney General’s Office.  And so, it is with such melancholic regret that I write about DEEP’s proposed bill to remove DEEP authority to enforce the wetlands act in some of its last remaining supervisory roles.

We certainly know that DEEP has had to do more and more with less and less – and that was before the budgetary crisis that became apparent in 2015 and is ongoing.  DEEP proposes to make it official (doing less) by Raised Bill #141.

The raised bill can be found here or by pasting in: Environment Committee will hold a public hearing on the bill (and 14 other bills) Wednesday, February 23, 2016 beginning at noon.

In the next few posts I will break the bill into the ghastly (removing DEEP authority), the quizzical (what did they mean by that?) and the syntactical (innocuous substitution of words).