Wednesday, August 10, 2011

State Supreme Court to Farming Community: Roads constructed with fill in wetlands not exempt from wetlands permit

In a unanimous decision (6-0) the state Supreme Court ruled in Taylor v. Conservation Commission, that roads constructed with fill in wetlands are not exempt from the state wetlands law and a wetlands permit is required. The Supreme Court believed it was addressing only those roads the construction of which required fill. The word "construct" means, according to the Random House Webster's College Dictionary, "to build or form by putting together parts." Those parts would constitute some kind of material, which in turn, would mean, that the construction of all roads involves "fill" of some sort. I'm hard-pressed to fathom what is left of the exemption for road construction directly related to the farming operation.

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Full disclosure: I represented the plaintiff, Jim Taylor, in his appeal to the Superior Court. I represented the Connecticut Farm Bureau Association, Inc., amicus curiae, in the Supreme Court appeal.

Fuller disclosure: In the 1980s I was a member of the board of directors of the Connecticut chapter of NOFA - the Northeast Organic Farming Association.

Fullest disclosure: My maternal grandmother was one of 10 children growing up on a farm in southwestern Germany where she spent many childhood hours working in the fields and cherry orchards. My great-grandmother fell from a piece of equipment and died in a farming accident. My father's relatives left farm fields in Southern Italy for the United States in the 1910s. In the Great Depression my father's immediate family, destitute and unable to survive in their row house in South Philly, moved in with his extended family in a 3-story multigenerational house directly across the street from the steel mills in Duquesne (Pittsburgh) where the family members, including children, who were not employed in the steel mills worked in the most amazing garden terraced into a 3-story high steep hill adjacent to their house which fed everyone in the family. From those years my father learned that farming meant family, food and freedom. I was the one to place seed packets in his casket in 1992.
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To those of you who have not had to think much about the farming exemption or any exemption under the wetlands law, you might wonder what's the big deal with concluding that construction of farm roads involving fill requires a wetlands permit. After all, construction involving fill requires a wetlands permit. Regulated activities, the ones which require a permit, exclude the activities in the statutory exemption. Exempt activities, by definition do not require a permit. So, determining whether an activity is exempt is a big deal.

The statutory language for the farming exemption in Conn. Gen. Stat. § 22a-40 (a) (1) is not for the faint of heart. The first sentence is very straightforward: a number of activities of listed. Farming is one of them. Thus, farming is exempt. But then you start to wonder, what about the farm road to get the equipment to the fields or the harvest out of the fields to the market? Is that road included?

So, you proceed to the second sentence:

"The provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow . . ."

The second sentence tells you what's not in the exemption, in other words, what needs a permit -- read through the first double negative . . . are you still with me?

Here is where the friction arises:"road construction directly related to the farming operation" vs. "filling of wetlands."

The Supreme Court resolves that tension with this one-sentence conclusion:

"We conclude that, even if road construction directly related to the farming operation is permitted as of right, such road construction is not permitted as of right if it involves the filling of wetlands, because the filling of wetlands is not permitted as of right."

With the "even if" phrase, the Supreme Court informs us it hasn't decided that the road construction is permitted as of right. The Supreme Court focused on the "filling of wetlands" exclusion to the exemption. That is clear. The Supreme Court states: "It [the statutory exemption re-filling of wetlands] plainly and unambiguously does not permit the filling of wetlands as of right." Ok.

But what is left of the "road construction exemption? Hard to know. The Supreme Court stated in the text of the decision (quoted above) that it hasn't decided whether there is a road construction exemption. If you missed that in the decision, you can reread it in footnote 10: "We emphasize that, because we conclude that filling in wetlands is not permitted as of right, we do not address the questions of whether road construction directly related to the farming operation is permitted as of right . . ."

The Supreme Court notes the wetlands staff memo mentions that floodplain soils can be sturdy enough to drive on. The genesis of this position is from Steve Tessitore, former DEP employee in the wetlands program. Such use of land isn't the same as road construction. In that case, no road construction is necessary. But what about when road construction is necessary?

Back to the definition, how do you build a road without putting together parts . . . composed of materials . . . which constitute fill? The Supreme Court, in footnote 8, holds the plaintiff responsible:

"(B)ecause the plaintiff has not demonstrated that all road construction on wetlands requires the use of fill, the plaintiff has not demonstrated that our interpretation of the statute renders the subject clause meaningless."

Now do you understand what kind of farm road can be constructed without fill and satisfy the exemption . . . if the exemption even exists?

I shared my initial thoughts with a number of consultants who have worked on the farming exemption. Some preliminary responses with twists of my own: If no road was needed to be constructed because the soil supported the weight of farm vehicles, but over time the area becomes rutted, is a permit needed to fill those ruts? Is the answer different if a farm road was built according to a permit and the road gets rutted? Another: Will we return to a time when tractors get stuck in wetlands because getting a permit for a road will be too difficult?

Whenever I write about the farming exemption I end up with the same thought: don't the wetlands agency members and those seeking to farm deserve a straightforward statute that spells out what is exempt and what is not?

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