You asked if SB 445, An Act Concerning Jurisdiction of Municipal Inland Wetlands Commissions, would increase the power of municipal inland wetlands commissions. The Office of Legislative Research is not authorized to give legal opinions and this should not be considered one.

SUMMARY

SB 445, An Act Concerning Jurisdiction of Municipal Inland Wetlands Commissions, is meant to restore the jurisdiction of local inland wetlands agencies to that which existed before a 2003 state Supreme Court case limited what they may consider in deciding whether to permit a regulated activity near a wetlands area.

Supporters of the bill say it restores to the commissions the authority the legislature intended when it enacted the Inland Wetlands and Watercourses Act. The bill’s opponents say it will expand the commissions’ jurisdiction beyond what the act intended.

The Court ruled in AvalonBay Communities, Inc. v. Wilton Inland Wetlands Commission that municipal inland wetlands commissions could protect the physical characteristics of wetlands and watercourses, but not wildlife that might depend on these areas. The attorney general and the Department of Environmental Protection (DEP), among others, viewed the decision as too narrow a reading of the state inland wetlands

act. SB 445 is meant to restore commissions’ jurisdiction to that which existed before the court’s ruling by specifically requiring commissions to consider impacts on wildlife and other factors.

SB 445 AND THE AVALONBAY DECISION

SB 445 requires the DEP commissioner and municipal inland wetlands agencies, when regulating, licensing, or enforcing certain activities that would affect wetlands areas, to consider the proposed activities’ impact on wetland and watercourse resources as well as their impact on the wetlands and watercourses themselves. The bill, which we have attached, defines wetlands and watercourse resources in response to the state Supreme Court’s 2003 decision in AvalonBay Communities, Inc. v. Wilton Inland Wetlands Commission, (266 Conn. 150). In that case, developer AvalonBay proposed building an apartment complex outside a wetlands area. But the inland wetlands commission denied permission, saying construction would destroy the upland habitat of the spotted salamander, a species that relies on wetlands for several weeks each spring. The commission reasoned that this would harm the biodiversity of the wetlands.

AvalonBay appealed, claiming that the Inland Wetlands and Watercourses Act (CGS § 22a-36 et seq. ) protects wetlands from physical damage or intrusion, but does not protect wildlife that might rely on the wetlands for a portion of its life cycle. The Supreme Court agreed with the developer. Noting that statutory definitions “are narrowly drawn and limited to physical characteristics, ” the Court ruled that the act “protects the physical characteristics of wetlands and watercourses and not the wildlife…or biodiversity. ” The Court specifically noted that while the act requires commissions to consider “irreversible and irretrievable loss of wetland or watercourse resources,” the statute (1) does not specify what those resources are, and (2) does not refer to such resources in defining wetlands and watercourses.

SB 445 attempts to remedy this by defining those resources. Under the bill, “wetlands or watercourse resources” include:

Information on SB 445 is available on line at BILL STATUS (4)

BILL HISTORY

The Environment Committee, which held a public hearing on the original version of SB 445 on March 1, 2004, favorably reported a substitute bill on March 5, 2004. The Senate referred it to the Planning and Development Committee, which reported it favorably on April 7, 2004.

The current bill differs substantially from that discussed at the public hearing. The original bill did not define wetland and watercourse resources. Instead, it authorized municipal inland wetlands agencies, when regulating activities in areas around wetlands or watercourses, to regulate activities affecting the biodiversity of wetlands and watercourses, including dependent wildlife species, as well as activities affecting the wetlands or watercourses themselves. It was later redrafted at DEP’s suggestion (see below).

Public Hearing Testimony

DEP, the attorney general, the Connecticut Association of Conservation and Inland Wetlands Commissions, (CACIWC), and several environmental groups testified in favor of the original bill. Several witnesses spoke in favor of the bill’s intent, but said it should be rewritten to address the Court’s concerns.

The Home Builders Association of Connecticut, Inc. (HBA) and an attorney who represented AvalonBay before the Supreme Court were among those who testified against the bill.

Testimony in Support of the Bill. DEP commissioner Art Rocque told the committee the AvalonBay decision conflicts with the legislative finding of the inland wetlands act, which states as one of its purposes preventing the loss of fish, wildlife or vegetation, and the destruction of their natural habitats (CGS § 22a-36).

Rocque stated that before AvalonBay, local inland wetlands commissions routinely considered the effect a proposed regulated activity would have on wildlife habitat when evaluating a proposal. (Under CGS § 22a-38(13), a regulated activity is any operation within, or use of, a wetland or watercourse involving removal or deposit of material, or any obstruction, construction, alteration, or pollution of wetlands or watercourses. Certain agricultural, residential, and other activities are exempt. )

Rocque said DEP was concerned that municipal commissions would no longer consider such factors after AvalonBay, and called on the committee to define wetlands and watercourse resources in the bill. DEP’s suggested language is incorporated in the present bill.

Attorney General Richard Blumenthal also testified that the Supreme Court decision restricts local inland wetlands agencies. He said AvalonBay “dramatically curtails the ability of inland wetland commissions to regulate development that is not within the wetlands but may have a direct impact on wildlife in the wetlands – contrary to the clear legislative intent of the legislature in passing the wetlands act. ” The bill, he said, would “restore the authority of inland wetlands commissions as it was” before AvalonBay.

CACIWC also testified that passage of the bill would be “a big step toward restoring previous jurisdiction. ” The Court decision, CACIWC President Tom O’Dell said, caused “considerable confusion in the land use decision process. ”

Testimony Against The Bill. The HBA, a professional trade association of residential and commercial builders, land developers and others, spoke against the bill. HBA Vice President and General Counsel William Ethier testified that AvalonBay did not affect a local commission’s ability to regulate impacts on wetlands or wildlife. “If wildlife is to be affected by a regulated activity it is because the activity does something to the wetland or watercourse,” he said. “All the Court did was effectively require local agencies to focus on that underlying impact. ”

Ethier warned that local inland wetlands agencies could become “little environmental protection agencies” if they were allowed to “presume” an impact to wildlife or biodiversity without explaining how it would occur. He also argued that permit applicants would not know in advance if they needed a wetlands permit because it would create “uncertain and potentially limitless permitting jurisdiction in local agencies. ”

Also testifying against the bill was attorney Matthew Ranelli. Ranelli, who represented AvalonBay before the Supreme Court, said he was speaking on behalf of his firm, Shipman & Goodwin, and not the developer. Ranelli said the bill is unnecessary because AvalonBay did not “in any way limit or undermine” a local agency’s power to regulate wetlands or watercourses to protect their “biological and wildlife habitat functions. ” It simply held, he said, that a commission cannot find that an impact on wildlife, separate and apart from an impact on wetlands or watercourses, is sufficient grounds to deny a wetlands permit. He warned that “making impacts to wildlife the basis of wetlands agencies’ jurisdiction would make the permitting process indeterminable and potentially limitless. ”

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