Tuesday, February 9, 2010

Is the meaning of "clear cutting" clearcut?

---adj. 1. formed with or having clearly defined outlines. 2. unambiguously clear; completely evident; definite: a clear-cut case of treason. 3. of or pertaining to a section of forest where all trees have been cut down (as for harvesting)."
Random House Webster's College Dictionary
The lay meaning of clear cutting references a forest and the removal of a portion of it. The definition of clear cutting as commonly relied on by wetlands agencies is devoid of the context of a forest. To begin, the Inland Wetlands & Watercourses Act mentions clear cutting in a round-about way. The sole use of the term "clear cutting" is in the second sentence of the agricultural exemption section, which designates that clear cutting is not exempt except when conducted to expand agricultural cropland. General Statutes § 22a-40(a)(1). The case that put clear cutting on the map was Timothy Mellon's removal of all vegetation, trees, shrubs and brush in a 2.5 acre area of floodplain along the Connecticut River in East Haddam. And, by the way, it wasn't on his land, but rather on land owned by the East Haddam Land Trust and The Nature Conservancy. Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, cert. denied sub nom. Goodspeed Airport, LLC v. Ventres, 547 U.S. 1111 (2006 ).

Mellon and his LLC argued that the removal of vegetation was not a regulated activity under the wetlands act. "Regulated activity" is defined in § 22a-38(13) as "any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses . . ." The Supreme Court noted that Mellon and his LLC cut the living vegetation growing within the wetlands and left the remains on the ground and concluded unambiguously: "If the removal of all vegetation growing in a wetlands area was not intended to be a regulated activity, we would be hard pressed to imagine what type of material the legislature had in mind in enacting § 22a-38 (13)." Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 138, cert. denied sub nom. Goodspeed Airport, LLC v. Ventres, 547 U.S. 1111 (2006 ).

Clearly, clear cutting of 2.5 acres is a regulated activity. How about the removal of four trees in an acre, when each tree is distant from the other? It would not fall within the lay definition. The 2006 version of the DEP Model Regulations defines "clear-cutting" in § 2.1 as "the harvest of timber in a fashion which removes all trees down to a two inch diameter at breast height." Under the DEP definition, adopted by many towns in their regulations, the removal of four trees on one acre, if the total number of trees is four, is clear cutting. The definition appears to be lacking an important sense of density and geographic area. If you define a portion of forest as small enough, you can clear cut a section by removing four trees, regardless of the number of trees in the entire forest. If there are only 4 trees on a one-acre lot, the removal of those four trees is the removal of "all trees."

When presenting a legal workshop with Assistant Attorney General David Wrinn and Attorney Mark Branse at CACIWC's 2009 annual meeting, I threw out this notion about "clear cutting." What we heard back from towns was astonishing. There are wetlands agencies that require a permit for the removal of a tree. A representative of another agency suggested that shrubs are trees, so that the removal of a shrub is considered within the meaning of clear cutting. We attorneys were taken aback by the interest in hyper-regulation by some wetlands agencies. If the removal of such four trees is on residential property, there is an argument that the removal is exempt. Pursuant to the "uses incidental to the enjoyment and maintenance of residential property" exception in § 22a-40(a)(4) the removal or deposition of material which is not "significant " is exempt.

Permit requirement for removal of a single tree or two or three? I look forward to another column on the topic -- after you have responded.

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Follow-up on Google Search: One reader appreciated the hyperlinks in a case to easily read cases the court is relying on. I must confess it fell short today when I went to the Ventres case (linked earlier in this post). The case is unpaginated and the citation lacks a reference to the certification denied by the United State Supreme Court.

1 comment:

rusane said...

Thanks for the great post. I have recently moved to, what appears to be, one of those "hyper-regulation" jurisdictions. I have some wetlands on my new property and am duly concerned with doing the right thing, but; my interpretation of the of the law, and what I'm finding my local wetlands agency is up to, are vastly different. I've just read some commission minutes where it appears a resident was found in violation for (amongst other things) stacking firewood in an upland review area. That doesn't sound like "deposition of significant amounts of material" to me, but apparently it does to the commission.

What boggles my mind most though is that the town requires an application be filed before commencement of "non-regulated" activity, to determine if said activity qualifies... Am I the only one who thinks filing an application such that a commission can determine whether or not what you are planning on doing is permissible (or not) is the quintessential illustration of the word "regulated"? I'm no attorney but; I would have thought the burden of proof, for whether what someone is doing is regulatable, would fall to the regulators - surely?

It also appears as if they think "grazing, farming, nurseries, gardening and harvesting of crops" is only a right if you have a 'farm'. I guess growing ones' own food doesn't count.