Countdown to 2010: Five Most Significant Acts in the Past Decade: No. 4 -- Appellate Court restricts jurisdiction of wetlands agencies

For the fourth most significant act in the past decade regarding the state inland wetlands law, I nominate the Appellate Court's decision in Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn. App. 710 (2003), cert. denied, 269 Conn. 909 (2004). Click here to read the decision. In order for an agency to regulate activities in an upland review area or beyond an upland review area, the agency must first adopt a regulation.

In that case, the wetlands agency denied a permit for an eight lot subdivision for activities occurring outside the wetlands and watercourses. At the time the application was filed, the agency had not adopted an upland review area by regulation. The agency believed it had an "inherent right" to regulate fifty feet outside of the wetlands or watercourse. The trial court dismissed the applicant's appeal. The Appellate Court reversed the trial court decision.

The Appellate Court examined the language of General Statutes § 22a-42a (f): "If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses." The Appellate Court reviewed previous Supreme Court cases and acknowledged that the wetlands agency had the discretion to regulate activities outside of wetlands or watercourses. Because the legislature used the word "if" at the outset of the statutory section, the Court determined the regulation of activities in the upland review area was optional. The Appellate Court also relied on the DEP guidance document "Guidelines for Upland Review Area Regulations Under Connecticut's Inland Wetlands & Watercourses Act" published in 1997 in which the DEP stated that establishing an upland review area was optional and to be enforceable must be adopted as a municipal regulation.

The Appellate Court concluded: in order to properly exercise the discretion to regulate the upland review area or beyond, the agency must first adopt a formal regulation governing such areas. This affects not only the proposed activities in an upland review area, but also activities proposed to occur just outside of the upland review area. For instance, if a subdivision application is proposed to be constructed 110 feet away and steeply upgradient from a wetlands in a town with a 100 foot upland review area, the agency has no authority to require a permit for those activities absent a regulation that reserves the right of the agency regulate beyond the upland review area,. Thus began a series of Appellate and Supreme Court decisions in the first half of the decade which clamped down on the authority of agencies to regulate activities, which cascaded into reversals of a number of permit denials.

The Attorney General's Office and the DEP responded through training of the wetlands agency members that agencies should adopt a definition of "regulated activity" that includes a description of any upland review area that agency is adopting (for instance, 100 feet, 200 feet, etc.) and the following language: "The Agency may rule that any other activity located within such upland review area or in any other non-wetland or non-watercourse area is likely to impact or affect wetlands or watercourses and is a regulated activity." This language was already part of the DEP guidance document "Guidelines for Upland Review Area Regulations Under Connecticut's Inland Wetlands & Watercourses Act" on pages 3 and 4.

The Supreme Court declined to accept this appeal for further review. In 2004 the Supreme Court declined to rule on the same issue, stating the issue was not preserved for appeal. See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 82-83 (2004). These were missed opportunities for the Supreme Court to weigh in on this very important issue of an agency's jurisdiction.

Did the legislature establish the jurisdiction of the wetlands agencies when providing a statutory definition of "regulated activity" to be applied statewide or does the agency's jurisdiction depend on the wording of the municipal regulation adopted? Perhaps the Supreme Court will provide a definitive ruling on this critical issue in the second decade of the twenty-first century.