Countdown to 2010: Five Most Significant Acts in the Past Decade: No. 2 -- Supreme Court strikes down consideration of wildlife

It started out as a wetlands agency in an extreme position to deny, yes again, an affordable housing proposal, to be constructed in the upland areas beyond the upland review areas. In AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150 (2003), (click here to read the decision), the Wilton wetlands agency denied the application because the destruction of the upland area would result in destruction of the upland habitat of the spotted salamander which would result in the reduction of the spotted salamander and ultimately the biodiversity of the onsite wetland.

The Supreme Court could have held there wasn't substantial evidence to support this conclusion, not enough experts with definitive enough opinions -- as yesterday's posting about the River Bend case addressed. The Court could have ruled that wildlife considerations in the upland beyond the upland review area are outside the wetlands agency's jurisdiction. Instead it thwacked all agencies by concluding that the state wetlands act "protects the physical characteristics of wetlands and watercourses and not the wildlife, including wetlands obligate species, or biodiversity." AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 163 (2003). So, no wetlands agency could ever consider impacts on wildlife in wetlands or watercourses.

What started as an extreme agency action morphed into an extreme judicial opinion. The Court allowed the consideration of wildlife in a narrow exception: "There may be an extreme case where a loss of or negative impact on a wildlife species might have a negative consequential effect on the physical characteristics of a wetland or watercourse . . ." AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 163 n.19 (2003). At the time I compared the opinion to eliminating a hangnail by chopping off a wrist. That person certainly wouldn't be bothered by hangnails again. Similarly, wetlands agencies wouldn't go too far ever again on wildlife, because they couldn't consider wildlife at all.

The AvalonBay decision, released in mid-October, was the subject of a legal workshop at the November 2003 annual meeting of the Connecticut Association of Conservation and Inland Wetlands Commission (CACIWC). There commission members expressed a range of reactions from shock to frustration to anger that the Court would take away such a fundamental component of agency review over the previous 30 years. Scientists had plenty to say about the depth of judges' understanding of the natural world.

CACIWC, along with a loose coalition of environmental organizations and advocates swiftly moved into high gear. The Connecticut Home Builders Association entered the fray. In 2004 the legislature passed an amendment which reflected a compromise between the environmental/regulatory groups and the Homebuilders.

Did the amendment affirm the Supreme Court decision or did it restore the authority of agencies to consider wildlife? Yes and yes. The legislature added two provisions to General Statute § 22a-41, which gives direction to the DEP and wetlands agencies on how to carry out their duties under the law when "regulating, licensing and enforcing" the act. In other words, it applies to all duties. The section 22a-41 (c) statute newly adopted now reads: "(1) 'wetlands or watercourses' includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) 'habitats' means areas or environments in which an organism or biological population normally lives or occurs." This language clearly reverses the holding in AvalonBay quoted in the second paragraph of this post. Thus, the legislature restored the jurisdiction of the DEP and wetlands agencies to consider wildlife and habitats, in carrying out their duties under the act.

However, the legislature placed significant restrictions on wetlands agencies but not on DEP, when reviewing applications for regulated activities occurring outside of wetlands and watercourses (in the upland review area, or beyond the upland review area.) Newly adopted § 22a-41 (d) reads: "A municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses." This subsection codifies the Supreme Court's decision for activities occurring in or beyond the upland review area.

For its impact on the day-to-day operations of wetlands agencies (albeit short-lived) and the ensuing speedy response of the legislature, the Supreme Court's AvalonBay decision is my choice for the second most significant event in the decade.