You asked about statutory authority to acquire private property to mitigate the impact of the Department of Transportation's (DOT) construction of a highway in a wetlands area. You describe a situation in which the Department of Environmental Protection (DEP) has conditioned its approval of a highway project on DOT's acquisition of private property to replace the wetlands on which DOT plans to build. OLR is not authorized to issue legal opinions and this report should not be considered one.

SUMMARY

DEP regulates certain state agency activities in wetlands and watercourses, and may condition permission to conduct such activities on mitigating the loss of the wetlands. When DEP requires the acquisition or creation of wetlands to offset DOT's construction of a highway on other wetlands, it is DOT's responsibility to acquire the land necessary to meet the permit conditions. DOT may do so through its statutory eminent domain power.

PERMITTING REGULATED ACTIVITIES UNDER THE INLAND-WETLANDS AND WATERCOURSES ACT

The Inland-Wetlands and Watercourses Act (CGS § 22a-36 et seq. ) requires state agencies proposing to build in or alter a wetlands or watercourse to obtain a DEP permit. In cases where the proposed activity will have a substantial adverse effect on the wetlands, the DEP commissioner may issue the permit only if she finds there is no feasible and prudent alternative (CGS § 22a-41).

In deciding whether to grant a permit for an activity that will cause irreversible and irretrievable loss of wetlands resources, the commissioner must consider, among other things, mitigation measures to (1) prevent or minimize pollution or other environmental damage; (2) maintain or enhance existing environmental quality; or (3) restore, enhance, and create productive wetland resources. The commissioner may make mitigation—for example, the acquisition of wetlands to replace those being developed—a condition of the permit (CGS § 22a-41(a) (4)). In such a case, it is up to the applicant to acquire the necessary wetlands.

DOT highway projects over a certain size also are subject to the federal Clean Water Act (33 U. S. C. 1251 et seq. ), which regulates the discharge of dredged or fill material into U. S. waters, including wetlands. In such cases DOT must also obtain permission to build in a wetlands from the U. S. Army Corps of Engineers.

DOT'S CONDEMNATION POWER

The law authorizes the DOT commissioner to acquire, by condemnation if necessary, land needed to lay out, alter, extend, widen, change the grade of, or improve any state highway (CGS § 13a-73). It does not explicitly permit DOT to condemn property to mitigate the environmental impact of highway construction. However, DOT's transportation planning director Ned Hurle says the department does so when mitigation is a DEP permit condition.

We could find no Connecticut case explicitly authorizing DOT to acquire property to meet DEP wetland mitigation requirements. However, condemnation of land for such a purpose forms part of the analysis employed by a three-referee Superior Court panel in South Farms Associates Ltd. Partnership v. Commissioner of Transportation (unreported case, 1992). The plaintiff in South Farms appealed the assessment of damages after DOT condemned his property to compensate for the loss of wetlands in the construction of the Central Connecticut Expressway (Route 9). In its analysis, the panel noted that “permits under the Clean Water Act may be conditioned on 'mitigation' to avoid or reduce the adverse effects of a proposed project. Permit applicants may be required to compensate for wetlands to be destroyed by permitted activities. ”

Two recent cases from Delaware and New Jersey support such takings more directly. In Cannon v. Delaware (807 A. 2d 556, (2002)), the Delaware Supreme Court held that while Delaware law does not specifically authorize the Delaware DOT to condemn land for wetlands mitigation, the department can do so “if necessary to advance the underlying purpose of construction and maintenance of the state's roadways. ” In State v. Trap Rock Industries, Inc. , (768 A. 2d 227, (2001)), the Appellate Division of the New Jersey Superior Court found that while “mitigation is strictly environmental in its nature” and not expressly authorized by New Jersey law, “the highway could not have been constructed without an environmental mitigation. Therefore the property at issue was realistically needed for transportation purposes, and the choice to acquire it cannot be seen to have been unreasonable…”

DOT's Hurle says DOT's first priority is to mitigate wetlands impact either on the project site itself, or adjacent to it. If neither is possible, it considers off-site mitigation. Hurle stated that while DEP suggests possible areas for mitigation, it is up to the DOT to actually determine what mitigation measures to take. He said DOT has purchased mitigation property for at least a dozen projects.

PF: dw