Connecticut State Supreme Court Decision Indicates Limited Statutory Authority of Municipal Inland Wetlands Agencies

Connecticut State Supreme Court Decision Indicates Limited Statutory Authority of Municipal Inland Wetlands Agencies

In a decision widely publicized in the wetlands regulated community, the State Supreme Court of Connecticut upheld Avalonbay Communities, Inc.’s (ACI) appeal of a decision by the Town of Wilton, CT Inland Wetlands Commission [Avalonbay Communities, Inc v. Inland Wetlands Commission of the Town of Wilton (SC 16807)]. The Commission denied ACI’s request for a wetlands permit based on the review of information the Supreme Court determined was not within the Commission’s regulatory purview.

ACI applied for a permit to construct rental apartments on 10.6 acres of land containing 0.32 acres of vernal pools, which meet Connecticut’s statutory definition of inland wetlands. During the municipal review process, ACI modified their proposal to eliminate all activities within the wetlands and the regulated area (a linear distance from the wetlands limit). ACI requested that the Commission determine that a wetlands permit was not required because there were no regulated activities proposed by the plans to develop the property. The Commission denied the request, and further indicated that a public hearing was necessary because the application proposed a “significant” regulated activity, which is one of the statutory reasons a wetlands commission may hold a public hearing. The basis for their decision to hold a public hearing was information contained in reports indicating that spotted salamanders breeding in the vernal pools travel up to 500 feet from the vernal pools, through areas proposed to be impacted by construction.

After the hearing was completed, the Commission denied the application because development in upland areas (areas outside of regulated areas that by statute, may be regulated by wetlands commissions) would result in destruction in habitat of the spotted salamander, thus reducing the biodiversity of the wetland and the downstream watercourse. ACI successfully appealed the decision to the State Superior Court. The Commission and the Connecticut DEP successfully filed motions to re-argue the case, and the Superior Court dismissed ACI’s appeal. ACI appealed that court’s decision to the State Supreme Court, which then upheld ACI’s appeal.

In their review of case law and state statutes, the Supreme Court determined that the environmental authority of local inland wetlands commissions is limited to wetlands and watercourse areas subject to their jurisdiction. The court determined that under state statutes, inland wetlands commissions may take into account the environmental impact of activities on the regulated area in making decisions, but not general environmental impacts of a project. The court determined that the statutes narrowly define wetlands and watercourses, and that the definitions are limited to physical characteristics. They determined that the statutes do not protect wildlife including species dependent on wetlands, nor do they protect biodiversity. The decision indicated that if wetlands commissions had such broader authority their jurisdiction would be without limit, and every activity on land would require the commission’s review to determine whether species dependent upon wetlands would be impacted.

The Connecticut DEP may develop new language in the form of proposed modifications to the state’s wetlands statutes. In the meantime, the DEP is recommending that local wetlands commissions not base their decisions on wildlife and habitat related characteristics of wetlands and watercourses, but on the proposed disturbance of wetlands and watercourse areas, soil erosion and other physical characteristics.