Countdown to 2010: Most Significant Act in the Past Decade: Lack of wildlife data valid basis for agency denial

In yesterday's post we were left with the hope that the legislature's 2004 amendment to the wetlands statute explicitly reinstates wildlife into the jurisdiction of wetlands agencies. Does it function? Yes it does. And will the Supreme Court interpret the new provisions to allow wetlands agencies to protect wildlife? Yes it did. In August 2009 the Supreme Court's decision in Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93 (2009) established two important points: 1) agencies can require the submission of a plant and animal inventory of the wetlands/watercourses as well as information on any impact to plant and animal life outside the wetlands that might impact the wetlands; 2) the burden of proof is on the applicant to establish its entitlement to a permit. Click here to read the decision. Click here to read my lengthier article published in The Habitat.

The agency denied the application for a 34-lot subdivision as incomplete for the applicant's failure to provide both a sufficiently detailed wildlife inventory and an analysis of alternatives. The trial court dismissed the applicant's appeal, finding there was substantial evidence to support the agency's denial. Before the Supreme Court the applicant argued that it had established that there would be no adverse impact on the wetlands. Therefore, the applicant continued, it established that the application would not have a physical effect on the wetlands/watercourses and no wildlife inventory could be required.

The Supreme Court determined that the agency was entitled to information about wildlife at the site. The legislature added § 22a-41 (c) which the Supreme Court called "a more expansive definition of wetlands and watercourses." Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 109 (2009). Wetlands and watercourses now explicitly include "aquatic, plant or animal life and habitats in wetlands or watercourses." Section 22a-41 (c). The Supreme Court held: "These provisions make clear that . . . the wetlands resources that a commission is charged with preserving and protecting . . .are not limited simply to the wetlands and watercourses as containers of soil and water but encompass the aquatic, plant or animal life and habitats that exist therein." Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 109 (2009). Further: "(A) commission necessarily must be able to request, and is entitled to, information on the aquatic, plant or animal life and habitats that are part of the wetlands and watercourses, pursuant to §22a-41 (c), as well as an assessment of impacts to those resources, along with information on any impact to plant or animal life outside the wetlands that might, in turn, impact the wetlands." (Emphasis added.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 110 (2009).

The applicant argued that absent evidence of a physical impact on wetlands or watercourses, the agency could not request wildlife information. The Supreme Court said no. The applicant has the burden of providing information to support its application. It cannot shift that burden to the agency by asserting that the agency must disprove the applicant's allegation of no adverse impact. Succinctly put, the Supreme Court stated that the agency or a third party (an environmental intervenor) "may use a wildlife inventory that an applicant submits as a basis for studying whether the proposed activity will impact that wildlife and whether that impact will in turn change the physical characteristics of the wetlands." (Emphasis in original.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 112 (2009).

The Supreme Court reviewed its previous decision in the AvalonBay case (see yesterday's post) and noted the legislature's action in the next legislative session. "(T)he legislature modified § 22a-41 to address these concerns and clarify its intent to balance the interests of preserving wetlands and watercourses, including the plants and wildlife that are part of the wetlands, with the interests of responsible land use." Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 108 n. 13 (2009).

So, at the end of the decade the Supreme Court has ruled that plants and animals are legitimate areas of inquiry of wetlands agencies, undoing the effect of the AvalonBay decision and broadly interpreting the legislative amendment, while making clear that the applicant retains the burden of proof. That's a lot of clarity to end the decade. For that, I select the Unistar decision as the most important act of the decade.

This ends the countdown of looking back. Tomorrow, January 1, I will suggest one way to look forward.