Sunday, July 25, 2010

Can a wetlands agency regulate activities that occur outside of the upland review area?

River Sound Development, LLC v. Inland Wetlands and Watercourses Commission, Part II

Good question. An important, fundamental question. Now with the decision in the River Sound case, there are two Appellate Court cases with different rulings -- i.e., there is no definitive ruling.

The case law prior to River Sound:

In my December 2009 countdown to the end of the prior decade, I nominated the decision in Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn. App. 710 (2003), cert. denied, 269 Conn. 909 (2004) as the fourth most important event of the decade. That case established that in order for a wetlands agency to exercise jurisdiction over activities occurring outside of the wetlands or watercourse, it must first have adopted a regulation defining that area. The Supreme Court declined to accept that case for further appellate review and declined to reach that issue in another Supreme Court case. Those were missed opportunities.

What River Sound held:

Well, it didn't answer the question. Here's what it did.

The Old Saybrook wetlands agency has a regulation defining a regulated activity as certain activities conducted within or use of a wetland or watercourse or within 100 feet measured horizontally from the boundary of any wetland or watercourse. A 100 foot upland review area. It turns out that about 2/3 of the wetlands agencies have adopted a 100 foot upland review area.

In the seven paragraphs devoted to this specific legal issue (Section IA), the Appellate Court spent six paragraphs reviewing the case law that clearly establishes that wetlands agencies may adopt upland review areas by regulation. Agreed. No party disputed that in this case. Did the Appellate Court miss the issue in the appeal? No. In the first sentence of Section I, the decision reads:

"The plaintiff [River Sound] first claims that the commission improperly exercised jurisdiction over activities not occurring within a wetland or watercourse or within 100 feet of a wetland or watercourse and over impacts to species."

(I'm unable to cite page numbers as of the writing of this post, as only the unpaginated advance release version is available.) That's the issue.

In the penultimate and ultimate sentences in the final (seventh) paragraph on this issue, the Court finally addresses the issue by stating:

"While some of the annotations reference activities occurring outside the commission's upland review area, the majority of the annotations identify specifically regulated activities that are within the upland review area. Accordingly, we conclude that the [trial] court properly found that, in denying the application, the commission did not exceed its jurisdiction to consider the impact of activities and improvements proposed to be developed in wetlands and watercourses and in the 100 foot upland review area."

Of course, the agency had jurisdiction over activities in the wetlands, watercourses and upland review area, but what about the activities occurring outside of those areas, the ones that River Sound specifically was appealing?

The Appellate Court just didn't answer the question that it indicates that River Sound posed. What's the take-away message from River Sound on jurisdiction? Is it "enough" that the majority of activities are within the wetlands or upland review area? Overwhelming majority of activities? Just over 50% ? We don't know. I may not agree with the Appellate Court ruling in Prestige Builders (I don't), but it is clearly articulated, so that anyone can follow the ruling and apply it to future cases. Not so with this holding in River Sound.

Agencies are seeing fewer applications that propose activities in wetlands and watercourses. The trend is for applicants to pull their activities out of those areas and into the upland review area and outside the upland review area. These circumstances are going to continue to appear around the state. So, what will you or your lawyer do when faced with an application with activities beyond the upland review area? Choose the Appellate Court decision that supports what you want. This certainly calls for Supreme Court resolution of this essential jurisdictional issue.

A fine kettle of fish.

In the next post we'll look at the Appellate Court's handling of the wildlife evidence.

1 comment:

David said...

Hello Janet:

Stamford attempts to address this issue in the definition of "Regulated Area" (any geographical area...)
d)Any geographical area where activity thereon may disturb the natural and indigenous character of wetlands, watercourses, floodplains, designated open spaces, and/or conservation-easement areas or impact the purity of groundwater supplies.

Combined with "Significant Impact" (whether or not within "Regulated Area")

2.35 “Significant Impact” means:
a) Any activity involving the deposition or repositioning of material that will have a substantial adverse effect on any regulated area as defined in Section 2.30 or on identified resources within any regulated area, or on any other part of the inland wetland and watercourse system whether or not such activity takes place in a regulated area as defined in Section 2.30 of these regulations;

Admittedly awkward, but it's known locally as the "all inclusion" or "unlimited jurisdiction" clause.

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DME