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.

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