Friday, January 29, 2010

Electronic Resources #3: Accessing court cases online

When I submit an article to the CACIWC newsletter about a court decision, I am frequently asked to include instructions of how to find the decision online -- at no cost. Lawyers tend to subscribe to legal search engines or can access many legal resources through membership in the Connecticut Bar Association. In today's post and next Tuesday's we'll look at two different options that anyone can access.

Most decisions that will be noteworthy for keeping current with the state wetlands law will be issued by the Connecticut Supreme Court or the Connecticut Appellate Court. Yes, there are numerous trial court decisions issued under the Inland Wetlands & Watercourses Act, but they don't create precedent and are only binding to the parties involved in the case. I sometimes read trial court cases in the absence of appellate precedent on an issue, or to get a sense of how judges or other parties are framing a dispute.

For a recent Supreme Court or Appellate Court case, the state judicial department offers an easy way to finds cases online. The decisions are available online 1-2 weeks before they appear in the printed Connecticut Law Journal. The judicial department started posting decisions electronically in 2000. The cases from 2000 forward remain accessible.

Go to the homepage of the judicial website: In the column to the far left, go down to and click on "Opinions." You can read the explanation that corrections may occur in the printed text and are the official version. Cases are released at 11:30 am. For that day only, the case will appear in "Supreme Court Opinions" or "Appellate Court Opinions."

Beginning the very next day, that case will appear only in "Archive." You will need to know what court issued the decision. Otherwise you will have to search in each Archive (one for the Supreme Court, the other for the Appellate Court.) It is not necessary or even useful to have the case citation, such as 1 Conn. App. 1, because the decisions are listed chronologically in the order they were published in the Connecticut Law Journal. Don't fret, there's an easy way around that.

Click on the Archive you are searching.

Click on the year in which it was published. If you don't know the year, you will have to do the next few steps in every year until you find the case. You don't need the full name of the case or even of the party, as long as you spell the name you know correctly. In the grey highlighted box under the list of years are instructions to use the Control F on your keyboard to enter the portion of the case name. For instance, in 2003 you will arrive at the caption for the Avalon Bay case, when clicking on "Next" if you enter "avalon bay" but not if you enter "AvalonBay". Similarly, in 2004 you will arrive at the caption for the River Bend case if you enter "river bend" but not if you enter "RiverBend." Once at the case name, click on the docket number, the letters and numbers to the left of the case name. Note: if there are separate opinions (majority, concurring, dissenting) each will be listed separately.

Because the electronic version has not yet been printed, there is no pagination. For me the lack of page numbers is a drawback from relying on this source. I want to be able to locate by page number the quote I will use in future references. For the scientists and commission members reading this, the access to the case likely outweighs the lack of official page numbers.

Next time a free online search engine -- with page numbers and for Connecticut Supreme Court cases back to 1950.

Tuesday, January 26, 2010

Electronic Resources #2 and 2009 Amendment to the Wetlands Act

In the last post I surveyed some of the useful links for legal resources. I thought I would move on to ways to access cases online until I read the Law Libraries' Newslog entry for last Friday. Click here to go to the Newslog. The Newslog itself is a gem. Don't take my word for it. The website "Justice Served," click here to go to the website, in 2006 awarded the Connecticut Law Libraries website as one of the top ten court websites in the world stating: " The state court portal itself is a past winner, but this law library site is worthy of separate honor as best in its class." We covered how to access the official version of the 2009 General Statutes, through the Connecticut General Assembly's website. But then we were faced with a gap. What about any changes in the last legislative session? Courthouse librarian Chris Roy posted a link to the table of statutes affected by the public acts passed in the 2009 session. This document was drafted by the Legislative Commissioners' Office. Click here to read "General Statutes Amended or Repealed in 2009."

By knowing the sections of the Inland Wetlands and Watercourses Act, §§ 22a-36 through 22a-45, we can easily check to see if there were any statutory changes. Scrolling down to page 24 of the document, we see that a new section was added to the wetlands laws: § 22a-42a (g), by 2009 Public Acts, 09-181, section 3. Now, going back to the General Assembly's website,, you can find the "Quick Search" function at the top of the page. The default search is for a bill, but using the drop-down arrow, you can replace "bill" with "Public Act." Add the bill number, in this instance "181," and change the year to 2009. Hit the "go" button on the far left. The text of the public act is the top document listed under the category "Text of Bill."

Here's section three of the public act:

"Sec. 3. Section 22a-42a of the general statutes is amended by adding subsection (g) as follows (Effective from passage):
(NEW) (g) Notwithstanding the provisions of subdivision (2) of subsection (d) of this section, any permit issued under this section during the period from July 1, 2006, to July 1, 2009, inclusive, shall expire not less than six years after the date of such approval. Any such permit shall be renewed upon request of the permit holder unless the agency finds that there has been a substantial change in circumstances that requires a new permit application or an enforcement action has been undertaken with regard to the regulated activity for which the permit was issued, provided no such permit shall be valid for more than eleven years."

The governor signed the bill on July 2, 2009. Thus, as of that day wetlands permits issued during the three year period (7/1/06-7/1/09) automatically are in effect for six years, without need for the permittee to request an extension or for the agency to act on it. There is even a summary of the public act prepared by the OLR (the office of legislative research). On the same page with the text of the public act, look in the right hand column and scroll down to "Bill Analyses," and click on "Summary for Public Act No. 09-181."

In closing, I can't overlook the fact that the court law librarians are what makes the Newslog such a gem and the courthouse libraries such an invaluable resource. Recently, librarians Karen Yeltema, George Booth, Chris Roy, Jeff Dowd and Catherine Mazur have posted entries. More than once (in this blog) Jeff Dowd helped me connect-the-dots and get it right. Click here for info on how to contact a librarian by phone or e-mail. Due to the budget crisis, six courthouse libraries are slated to be closed in the next six months, leaving ten courthouse libraries open. All of the librarians will remain employed.

Friday, January 22, 2010

Electronic Resources #1

I've been chatting with Ed Pawlak of the Connecticut Association of Wetlands Scientists ( about electronic resources available regarding wetlands and watercourse protection as he is preparing a page for the organization's website. I thought I would post some of the links I have found useful.

Want to check out the wording of the wetlands statute? The Connecticut General Assembly's electronic version of the official version of the General Statutes is handy and easy to use: If you know the section in the statutes, you can most efficiently get there by clicking on "Statutes" and thereafter the browse button. For the wetlands statute beginning at General Statutes § 22a-36, scroll down to Title 22a. A list of chapter numbers appears on the far left. The next column sets out the sections within the chapter, followed by a column with the chapter name. You'll see that chapter 440 is entitled "Wetlands and Watercourses" and includes more than the law on inland wetlands, as was mentioned in the last post. You can click on either the chapter number or the title and arrive at the table of contents of the chapter. Once there you can click on whichever section you want, such as factors for consideration, § 22a-41, or the statutory exemptions, § 22a-40. Click here to go directly to the table of contents page for Chapter 440. The official statutes are prepared every two years. The most recent version is revised to January 1, 2009. It does not include any amendments to the statutes passed in the 2009 session.

The DEP website,, is full of useful links. Begin with the homepage for inland wetlands and watercourses. Click here to go to that homepage. The page entitled "Legislation, Regulations & Case Law" contains a number of useful documents (though no case law, despite its title.) Please note that the link to the statute in the DEP's website is the 2007th version, not the most recent revision. The DEP Model Regulations revised to 2006 are available. It is very easy to determine the changes made from earlier version as the changes are underlined. Click here for the Model Regulations. The Legislative and Regulatory Advisories for 2006 - 2008 should also be consulted in determining what the current status of your municipal regulations. The advisories are available on this same page.

Have use for reading the DEP Guidance Document on Upland Review Area Regulations from 1997? It contains suggested language to correct for the "Prestige Builders" jurisdictional problem, as mentioned in the post for December 29, 2009. You can access the document from the "Legislation" page or click here to go directly to the guidance document.

Also on this page is my favorite way to find wetlands regulations from 38 towns, by clicking on "Wetland and Watercourse Regulations for the Towns of Connecticut." Click here to go to that page. DEP's link is dependent on the cooperation of towns to provide links to their regulations. The page includes an alphabetical list of the municipalities in the state. The underlined ones have links directly to the wetlands regulations. For other towns, you can go to the official Town and Cities in Connecticut page, which can be accessed from the same "Legislation" page or click here to go directly to the page. Whether you will find it easy to access the wetlands regulations depends on how the town's webpage is organized and updated. Sometimes it can be buried or the search functions may not be complete. Special thanks to Dave Emerson who staffs the Stamford Environmental Protection Board (aka the wetlands agency in Stamford) with his over-the-top service last fall when I could not find the wetlands regulations which I felt certain were on the city's webpage. We exchanged e-mails and he wanted to understand how I couldn't find the regulations. Within a day he changed the search engine so that even I could find the inland wetlands regulations. He must be the IT wizard in town as well. Not all towns make it that easy.

In the next post I'll highlight two different ways to find court decisions on the internet.

Tuesday, January 19, 2010

Abstaining from abstaining

And now for something entirely different. Is anyone else bothered by wetlands agency members abstaining when it's time to vote? Not a legal topic, but a matter of good government. I'm not referring to members who recuse themselves, as they must, when they are "directly or indirectly interested in a personal or financial sense." General Statutes § 22a-42 (c). I note, however, that members shouldn't be waiting until the vote to recuse themselves, as they must not participate in the proceedings leading up to the vote.

In Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 99 (2009) , the Supreme Court noted in passing that a motion to deny the application was made, with 2 members voting to deny and 3 members abstaining. The majority of members at the meeting didn't cast a vote! Recall that I cast a vote nominating the Unistar case as the most important court decision of the last decade. (See the post for December 31, 2009.) This is not a column of how to make your abstaining unassailable on appeal. It is perfectly legal to abstain from voting. I must say, after doing a little research, that this is not the most egregious example in Connecticut. That must go to the Hamden Planning & Zoning Commission. In 1315 Hamden, LLC v. Hamden Planning and Zoning Commission, 35 Conn. L. Rptr. 316 (2003), 4 members of the agency were present, of whom 1 recused himself based on a business relationship with the applicant, 1 abstained, 1 voted to deny and 1 (the chair) abstained based on a tradition that the chair doesn't vote unless there is a tie. The official vote: 1:0. The vote was upheld by the trial court, as there was no requirement in the enabling statute that required a minimum number of votes.

Legal, yes? Good government? Hardly. The legislature declared the wetlands and watercourses of the state "an indispensable and irreplaceable but fragile natural resource;" General Statutes § 22a-36; and set up a community process by which permits are decided upon. It serves neither the applicants nor the public when their wetlands officials decline to opine.

I wonder what the reasons are that members choose not to vote. If a member is unsure whether a permit should be granted, that issue can be turned around: did the applicant meet its burden of establishing its entitlement to the permit? Is the reason a member is unsure a valid reason for denial? If so, and the member should frame his/her reason for voting (of course I am assuming the member will divulge the reason) on the applicant's meeting its burden or failure to meet its burden. Is the clash between the applicant and the public or environmental intervenors uncomfortable for some members? Figure out which issues are relevant to the proceeding. The member can thank the side s/he is going to vote against for sharpening the issues and so on, but vote based on the issues. Is the real problem that members are afraid of taking a stance on controversial projects? And is the fear of not being reappointed affecting the willingness of members to vote? If so, why does such a member want to be reappointed? Throw out the tradition that the chair of an agency doesn't vote.

I would sincerely like to hear from wetlands agency members who have abstained to understand their motivation. You needn't submit your comments for all to read. You can abstain from commenting on my blog. I am happy to receive your comments at And thanks to all the comments folks have sent my way. I've enjoyed the opportunity to interact by phone and by e-mail.

The gain is plain when choosing not to abstain.

Friday, January 15, 2010

Daylighting the case upholding the highest penalties awarded in a wetlands case

In the last post I wrote about the Connecticut Supreme Court's use of the legislative finding within the wetlands statute when interpreting the statute. In that example, Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93 (2009), the court quoted from the legislative finding of the tidal wetlands act and not the inland wetlands and watercourses act. Indeed, the legislature could have been clearer. In 1969 the tidal wetlands act was the first of the two wetlands laws enacted. The legislature used the word "wetlands" in the legislative policy in General Statutes § 22a-28 and then defined "wetlands" in § 22a-29 to mean exclusively tidal wetlands. When the Inland Wetlands and Watercourses Act was passed in 1972, it included a definition of "wetlands," for the Inland Wetlands and Watercourses Ac,t that excludes wetlands regulated pursuant to §§ 22a-28 to 22a-35 (a reference to the tidal wetlands act.) When paging through the statutes, one can easily glance at the word "wetlands" and misread its context.

Something similar happened to a case upholding a penalty award of $162,750 for a dumping of trash in inland wetlands in Monroe. In Commissioner of Environmental Protection v. Connecticut Bldg. Wrecking Co., 227 Conn. 175 (1993), the commissioner of DEP brought an environmental enforcement action against a number of individuals and corporations for violations of a variety of environmental laws from the dumping of trash in Bridgeport and Monroe. The case is important for a number of environmental reasons not related to wetlands matters and thus, we'll pass over those aspects.

Of interest to us is the illegal dumping of solid waste in wetlands on Main Street in Monroe. The trial court found that the defendants had put the materials in the wetlands without a permit and assessed a penalty of $250 per day for the 651 days that the materials remained in place as of the day of trial. That's some whopping penalty: 250 x 651 = $162,750.

On appeal the defendants disputed neither the daily amount of the penalty, $250, nor the finding that they dumped the waste materials in the wetlands. Their appeal: the fact that they could be penalized for each day the materials remained in violation.

The Supreme Court examined the statutory language regarding penalties, citing the tidal wetlands act reference, § 22a-35: "in the case of a continuing violation, each day's continuance thereof shall be deemed to be a separate and distinct offense." This identical language is found in the inland wetlands act, in the middle of § 22a-44 (b). The Supreme Court held, in light of the public policy expressed in the legislative finding in § 22a-36 (the inland wetlands act) that a violator can be penalized both for the act of placing the unpermitted material in the wetlands and for each day it remains there.

At the time the case was decided I worked in the Attorney General's Office and I asked my colleague who handled the case why the Supreme Court had referred to the tidal wetlands act. He honestly responded that he had provided the statutory references to the tidal wetlands act.

Because this case was not brought by a wetlands commission and because on its face there are a number of statutory references to the tidal wetlands act, this case has all but disappeared from the case law under the Inland Wetlands and Watercourses Act.

The case deserves to be daylighted. It instructs a wetlands commission that it can seek penalties for the violation and the period it remains so. It behooves a violator to remove the violation sooner rather than later, even if the commission hasn't yet discovered the violation, as those potential daily penalties can really add up.

Tuesday, January 12, 2010

Enhancing the Wetlands Act

The Inland Wetlands and Watercourses Act, General Statutes § 22a-36 et seq., a portion of chapter 440, begins with a legislative finding, § 22a-36, that comprises six sentences. A reasonable length if the last sentence didn't occupy fourteen lines in the text. (I'm happy that I was required to memorize the Preamble to the United States Constitution in sixth grade instead of § 22a-36.) In numerous state Supreme Court cases the court has excerpted sometimes large chunks of the legislative finding as a backdrop against which it evaluates a wetlands issue. The finding has proven to be a vital part of the statutory "organism," if you will.

Beginning about two years ago a group of environmental organizations and individuals began meeting to contemplate proposing amendments to the wetlands act. Originally the sole focus was on the concept of legislation to protect vegetated areas alongside rivers and streams. During the process of developing that proposal a dialog occurred about the "malaise" some were feeling about the Supreme Court cases that were released in the first half of the 2000s. (For some background on that issue, see Countdown to 2010, posts on Dec. 28, 2009 and Dec. 29, 2009.)

During that time the group met with various representatives of the Department of Environmental Protection. Steve Tessitore, the DEP's municipal liaison in the Inland Water Resources Division, noted the difference in the statutes regulating tidal wetlands and inland wetlands. The tidal wetlands act predated the inland wetlands and watercourses act. It also consolidated all regulatory authority over tidal wetlands with the commissioner of DEP. But most importantly, Steve pointed out that the legislative finding in the tidal wetlands act declared the policy of the state was to "preserve the wetlands and to prevent the despoliation and destruction thereof." General Statutes § 22a-28.

In contrast, what was declared to be the "evil" regarding inland wetlands was the "unregulated use" or "unregulated activity." These phrases are found in the second, third and fourth sentences of § 22a-36. What this legislative finding preceded was a law that "regulates" the uses, not prevents the use of wetlands. With the idea that what's good for tidal wetlands is good for inland wetlands and influenced by Steve Tessitore's insight, I suggested that the group consider plucking the language from the tidal wetlands act and inserting it into the inland wetlands act. The idea was enthusiastically received and found its way into a bill last session entitled "An Act Concerning Enhancements to the Inland Wetlands and Watercourses Act." (Other enhancements were also included in that act which won't be discussed in this post.) The bill gathered momentum but was ultimately not passed.

In August 2009 the state Supreme Court released its decision in Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93 (2009). The case is very important for its interpretation of the provisions of the wetlands law enacted in 2004 regarding wildlife. (See the entry for December 31, 2009 for an elaboration of the value of the case.) In beginning its legal analysis of the statute, the court appropriately began with a reference to the legislative finding. I found myself squinting and rubbing my eyes as I read the words in quotations by the court declaring the legislative purpose to include "preserv[ing] the wetlands and . . . prevent[ing] the despoliation thereof." Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 106 (2009). Didn't that bill die in the 2009 legislative session? The Supreme Court elevated the value of inland wetlands to the status of tidal wetlands. Whether intentional or not is unknown. It underscores the importance of the legislative finding in the statute. Various legislative offices and individuals frowned upon proposals to amend legislative findings as non-substantive. The actions of the Supreme Court prove them wrong. A legislative finding is highly regarded by the Supreme Court. Look for that legislative bill to resurface this upcoming legislative session.

In the next entry I'll "daylight" another Supreme Court case in which an inadvertent reference to a section of the tidal wetlands act may have buried the court's affirming the highest penalty ever awarded for violations under the Inland Wetlands and Watercourses Act.

Friday, January 8, 2010

For the record

Another post in a series about the Unistar case. Today it's all about footnote 6. To be precise, Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 98 n.6 (2009). Here is footnote 6 in its entirety:

"Although the record does not indicate what the conservation district is, its website indicates that it is a nonprofit organization 'dedicated to helping the towns and citizens of Eastern Connecticut with their conservation needs. . . . [The conservation district] assists citizens and towns in making sound natural resource decisions, and . . . promotes[s] sustainable use of natural resources.' See (last visited July 2, 2009)."

My penciled notes on the margin of my Connecticut Law Journal issue of August 18, 2009 are: "court went outside record." A pretty ho-hum issue, unless you have been training wetlands commission members for years about "making the record," i.e., getting all the information into the administrative record that a court will review to determine if there is substantial evidence in the record to support the agency decision. I was part of the team of assistant attorneys general who for years (in my case, 16 of them) drove around the state to training sessions sponsored by the DEP, where we presented legal topics to legal-advice-deprived commission members.

This footnote came back to me weeks later, as I read a newspaper article that the Public Service and Trust Commission Jury Committee of the state Judicial Department is likely to issue a rule this year prohibiting juror use of social networking sites to discuss or investigate the case in which they are serving. The current criminal jury instructions state: "Do not look anything up on the Internet concerning information about the case or any of the people involved . . ." (last visited January 7, 2010), 1.2-10 Your Conduct as Jurors.

What about the judges? The Unistar case is a wetlands appeal -- a case to be decided on the administrative record. The traditional tools available to the Court to discern the identity of the conservation district included the state statutes and state regulations. What can be gleaned from the statutes is that DEP establishes regional councils which may be empowered through regulations to provide technical assistance to municipal agencies. General Statutes § 22a-315. The regulations inform us that the conservation districts may review and comment on local projects affecting water resources. Reg. Ct. St. Agen. § 22a-315-14 (b) (1). Granted, there are pictures on the conservation district's webpage which make it more fun and the language is way more user-friendly than the statutes. It's not the first time the Supreme Court has "improved" the submission of a conservation district. In Finley v. Inland Wetlands Commission, 289 Conn. 12, 46 n.4 (2008), the concurring opinion written by Justice Norcott, identifies the Southwest Conservation District and explains what the district is, based upon the district's webpage, not the administrative record.

What the Supreme Court proved to us in footnote 6 in Unistar is that everyone uses the internet to become an instant expert. I must confess that I cited a company's webpage when writing to the Commissioner of DEP. I asked for state enforcement against a company bragging of engaging in certain activities. These activities, while rendering the site more commercially interesting to certain elements of the public, also indicated to others of us that the company was engaged in an activity which required a DEP permit. (I disclosed the webpage and the date it was last "accessed." The Supreme Court's citation form, date "visited" is more user-friendly. I've already penciled it into my Manual of Style as the proper citation form for a webpage.) However, this wasn't after a public hearing had been closed nor was it outside of an administrative record for a case on appeal. When meeting with DEP officials to discuss my letter, a manager discounted the importance of statements in a website by noting -- everyone distorts things on the internet. Ain't it the truth!

Is the administrative record passé? Until we know for certain, prudence dictates:

1. Conservation districts: the Supreme Court has got your back. If you're anyone else and wish to submit written comments that you want the agency to rely on, perhaps you ought to start by identifying yourself or your organization/entity in the first paragraph of your letter. It wouldn't hurt to add a resume to the letter.

2. If you (an applicant, a landowner, a neighbor in opposition, a wetlands commission member, a lawyer for any of the above) want to rely on a conservation district, or any other expert, and the expert hasn't complied with #1 above, you may need to make the record and identify the expert and his/her expertise.


Because you can't depend on your case making it to the Supreme Court.

Tuesday, January 5, 2010

Wildlife: what's in a name?

"What's in a name? That which we call a rose
By any other name would smell as sweet."
Romeo and Juliet (II, ii, 1-2), William Shakespeare

In addition to the important holding in Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93 (2009) (lack of sufficient data in a wildlife survey valid basis to deny wetlands permit), referred to in the post of December 31, 2009, the Supreme Court gave us a footnote to ponder, to wit: "We note that, although the plaintiff has framed the issue as a challenge to the commission's authority to deny an application as incomplete on the basis of a lack of a sufficiently detailed inventory of both plant and animal species, the commission's decision refers solely to the absence of information on wildlife. We therefore treat the plaintiff's claim consistent with the actual basis of the commission's decision and principally focus our discussion on the commission's decision and principally focus our discussion on the commission's authority to request information on wildlife." (Emphasis in original.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 95 n.3 (2009). My penciled notes next to the footnote question: "What does Supreme Ct mean since wildlife encompasses both?"

I do use the word "wildlife" differently, depending on the context. When I am engaged in some professional task involving "wildlife" I mean all life, plants and animals. After all, biology includes zoology and botany. But when talking in a lay sense, I use wildlife to mean the animals among us. So, this past summer in the middle of my olympic triathlon (the biking portion) when I was audibly cursing (true) the lack of wildlife as I was struggling up a steep hill, I wasn't bemoaning the lack of diversity in the vegetated understory. I meant: where were the birds and their songs to distract me from the pain of the moment? I meant good-old-fashioned wildlife.

I thought everyone made the distinction between the scientific (plants and animals) and the lay sense (animals only). Not so. I started asking every environmental consultant and DEP staff person I came in contact with. They were split down the middle. The same with the dictionaries in my possession. I consulted Connecticut Wildlife by Dr. Geoffrey Hammerson. He begins the introduction with the definition of wildlife from the Oxford English Dictionary: "the native fauna and flora of a particular region." In the text he explains that he included both plants and animals, not just vertebrates or "charismatic groups." See G. Hammerson, Connecticut Wildlife, (2004), Introduction, p. xiii. Ah, no favoritism to the Bambi-organisms.

In a trial court case the reverse to my differentiation was argued. In River Sound Development, LLC v. Connecticut Fund for the Environment, Superior Court, judicial district of Middlesex, Docket No. CV 04 4000381(November 3, 2004) the plaintiff, wishing to develop the large parcel in Old Saybrook known as the Preserve, argued that CFE's fliers contained false statements when they stated that endangered wildlife species were present on the Preserve's property. The parties agreed that there had been an endangered plant species on the site. The applicant argued that the technical definition of wildlife excluded plants, while CFE argued that the common lay definition included them. The court stated it understood wildlife to include plants.
The Inland Wetlands & Watercourses Act does not define wildlife. There are two references to wildlife in the Act. Both are from the original public act enacted in 1972. One is in the legislative finding, General Statutes § 22a-36, citing that one purpose of the Act is to prevent the loss of "wildlife and vegetation." The other refers to activities permitted as of right, General Statutes § 22a-40(b)(1), the "conservation of . . . vegetation . . . and wildlife . . ." The legislature in 1972 used wildlife to mean just animal life.
When the legislature amended the Act in 2004 to address the AvalonBay case (see the post of December 30, 2009), it did not use the word wildlife. It used language which explicitly included both flora and fauna. Section 22a-41 (c) defines wetlands or watercourses to include "aquatic, plant or animal life in wetlands or watercourses." In the companion section adopted at the same time, section 22a-41 (d) tracks the same language.
After the Supreme Court in Unistar indicated in that early footnote that it would be focusing on animals, it did construe the statutory sections regarding both plant and animal life.

So, did the wetlands agency considering the Unistar application mean an inventory of both plants and animals? Who knows. We have no commonly understood meaning of "wildlife" that transcends our lay/scientific differences, nor agreement among scientists. Add to that the statute provides no definition. The wiser course of action now, whether you are an agency member seeking a wildlife inventory or an applicant presenting one, is to define wildlife or use the language of the 2004 legislature "plant and animal life."

To life! L'chaim!

Friday, January 1, 2010

2010: Looking backward and forward -- training for agency members

The last five posts have looked backward into the past decade to identify acts, after they occurred, for their effect on wetlands law in the state. The actors have been the DEP, the Connecticut Supreme Court and the state legislature. Most people who interact with their local wetlands agency, including most applicants, go no further than to the monthly meeting and appear before the agency. Most of the time the most important actor is the agency itself, not the DEP, the legislature or the courts. It is the agency members and the staff who have the most public visibility. The agency members are the ones at meetings and hearings left with the task of explaining the process and substance of how they process applications and conducting their deliberations in public. The fate of the future of a town's wetlands depends on how well the agency members execute their duties.

You might think this is a monumental task and members appointed engage in elaborate training. Not so. The statutory training requirements are woefully inadequate. The DEP is required to develop a comprehensive training program. Done. The DEP is required by statute to offer the annual training at no cost to one person per town. Done. At least one member of the agency or its staff is required to have completed the comprehensive training. In Swamped: Cities, Towns, the Connecticut DEP and the Conservation of Inland Wetlands, A Special Report of the Connecticut Council on Environmental Quality, October 1, 2008, the Council on Environmental Quality noted that the DEP records indicate during the period of 2000 through 2006 that 37 towns, 22 % of the municipalities in the state, had no member or staff who completed the 3-part DEP annual wetlands training program. Click here to read the report. (Note: Although I have served on the CEQ since appointed in March 2009, I was not a member of the CEQ at the time the report was produced.) Moreover, there is no requirement for "continuing education." If my understanding of the wetlands law remained crystallized with the training I presented in 1990, it would not only be inadequate, in some instances it would be wrong (due to changes in case law and legislation).

Even if every town had a member trained in that seven-year period, who thinks that training of one agency member is sufficient? I've appeared before wetlands agencies with as few as 5 members and with as many as 10 members. Would you feel confident on the highways if 1 out of 5 drivers or 1 out of 10 had licenses? Do you think protecting humans from automotive mishaps shouldn't be compared with protection of wetlands? Well, the legislature declared that the wetlands and watercourses of the state are "an indispensable and irreplaceable but fragile natural resource." It set up an elaborate procedure to examine the effects and protect the resource. To allow decision making to occur with potentially only 1 trained member out of 10 is simply not good government, even if it is legal. Just because D- is a passing grade, we needn't aim so low in fulfilling the duties under the wetlands act.

On this first day of the year I throw out two changes for consideration. Agency members are public officials. Their participation in DEP training should be a matter for public inspection. To that end I recommend that the list of participants in DEP's training be posted on the DEP website on the wetlands page. Too labor intensive for DEP? Let's streamline the work: the sign-in sheets (which already are used at each training session) can be organized alphabetically by town. The sheets with checkmarks next to the names of those who attended can be scanned in and uploaded onto the appropriate DEP webpage. DEP staff wouldn't have to field questions about which towns have members participating, etc. The data would be available for anyone to use. This proposal requires no legislative initiative, just DEP's. DEP would undertake this task prospectively. There would be a one-time submission from each agency at the implementation of this change where the past training of current members be disclosed. DEP would have a baseline of the degree of training possessed by current members. Do I suggest this to embarrass agency members? Not really. I want to know when I am appearing before a commission with a (choose from the following) applicant/CEPA intervenor/person proposing an exempt activity whether the members I'm appearing before have no training/little training/ training/ optimal training. I will adjust my presentation based on the expected understanding of the law or lack thereof.

My second suggestion involves changing expectations and probably statutory requirements of what is sufficient training. I propose that every member should be expected to complete the DEP training within 24 months of appointment with a continuing obligation to complete DEP Segment II, update on case law and legislation, or the CACIWC equivalent (offered at the November annual meeting) every other year. To me that is quite a compromise position. As someone who has been training wetlands commission members since 1990, I personally believe each member should be trained within the first twelve months of appointment and should complete the Segment II update every year. How else could a member feel secure in carrying out his/her duties? But personal and family exigencies arise, the DEP courses are not offered at times when convenient to members, etc. There will be increased costs to send members to DEP training. The wetlands act should be amended to allow the fees assessed for applications to include the cost of training.

This is an area where many interests intersect: agency members who want to get more training (and raise fees to pay for the training), applicants who want to be heard before knowledgeable agencies, environmental intervenors and interest groups who want educated agencies making decisions, municipal officials who want a means to pay for the training and who want more informed agencies making decisions that will survive legal attack.

Common ground exists. May we find a way to implement changes in training this year.