Friday, July 30, 2010

Consideration of wildlife within jurisdiction of wetlands agencies

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

The River Sound case affirms the authority of wetlands agencies to consider wildlife and base decisions on the adverse effect to wildlife under certain circumstances. However, the wording used by the court decision may lead agencies to believe it's easier to consider wildlife than it actually is.

River Sound Development challenged the authority of the agency to consider the life cycle of certain amphibians (spotted salamander, marbled salamander and wood frog). The decision starts out with a discussion of the Supreme Court's decision in AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150 (2003). As noted in an earlier post, the Supreme Court through that decision removed wildlife from the jurisdiction of wetlands agencies. It allowed for an exception in footnote 19 on page 163 for the "extreme case where the loss of or negative impact on a wildlife species might have a negative consequential effect on the physical characteristics of a wetland or watercourse . . ." The Appellate Court pointed to the amendment of the wetlands statute which reversed in part and affirmed in part the court's holding in AvalonBay. The legislation reinstated the consideration of wildlife within the jurisdiction of wetlands agencies. On the other hand, the legislation affirmed that for activities outside of wetlands and watercourses an agency can't base a permit denial on wildlife unless the proposed "activity will likely impact or affect the physical characteristics of such wetlands or watercourses." General Statutes § 22a-41(d).

The Appellate Court ended that discussion of the law noting that "substantial evidence was presented to show that the amphibian life contributed to the life cycle of the wetlands themselves." River Sound Development, LLC v. Inland Wetlands and Watercourses Commission, 122 Conn. App. 644, 654 (2010). That is neither a useful fact nor the precondition for an agency to deny an permit when the activities occur outside of wetlands and watercourses.

There is just one paragraph in which the amphibian facts are laid out in the court's decision. The applicant's expert, Michael Klemens, provided the expert opinion on which the agency relied. The agency determined that the reduction in amphibians, specifically wood frogs, due to fragmentation of the forest would have an adverse physical effect on the water quality of the vernal pools. Klemens explained that wood frogs remove the detritus from the pools. "They're one of the few species which you can say there's direct nexus biologically." River Sound Development, LLC v. Inland Wetlands and Watercourses Commission, 122 Conn. App. 644, 655 (2010). After citing Klemens' characterizing wood frogs as a "keystone species in terms of the wetlands cycles," the Appellate Court concluded that there was substantial evidence in the record that the loss of wood frogs would have an adverse effect on the physical characteristics of the wetlands.

What's not clear from the decision is the size of the population. In discussions with David Wrinn of the Attorney General's Office representing DEP, I learned that the Appellate Court was presented with briefs and oral argument that reflected many more facts from the record than were included in the court decision. He pointed out that Atty. Matt Ranelli representing the Town of Essex, "connected the dots," between the relevant facts and the triggers in the law. Unlike the population of salamanders in AvalonBay, a handful, there were a couple hundred of wood frog tadpoles reported in a number of vernal pools. As quoted in the court decision, the substantial reduction in the population of wood frogs affects the amount of detritus taken up in the pool, which in turn affects the water quality, a physical characteristic of the waterbody. The elimination of a handful of wood frog tadpoles, for instance, would be unlikely to support a denial, as it would be harder to "connect the dots."

The decision understated some of the important facts in the case. This case is a Big Deal. When a record lines up expert opinion about the adverse effect of development on the population of a species, for which there is a population significant enough to affect the quality of wetlands or watercourses, the agency will have a valid basis to deny the permit.

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