Daylighting the case upholding the highest penalties awarded in a wetlands case

In the last post I wrote about the Connecticut Supreme Court's use of the legislative finding within the wetlands statute when interpreting the statute. In that example, Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93 (2009), the court quoted from the legislative finding of the tidal wetlands act and not the inland wetlands and watercourses act. Indeed, the legislature could have been clearer. In 1969 the tidal wetlands act was the first of the two wetlands laws enacted. The legislature used the word "wetlands" in the legislative policy in General Statutes § 22a-28 and then defined "wetlands" in § 22a-29 to mean exclusively tidal wetlands. When the Inland Wetlands and Watercourses Act was passed in 1972, it included a definition of "wetlands," for the Inland Wetlands and Watercourses Ac,t that excludes wetlands regulated pursuant to §§ 22a-28 to 22a-35 (a reference to the tidal wetlands act.) When paging through the statutes, one can easily glance at the word "wetlands" and misread its context.

Something similar happened to a case upholding a penalty award of $162,750 for a dumping of trash in inland wetlands in Monroe. In Commissioner of Environmental Protection v. Connecticut Bldg. Wrecking Co., 227 Conn. 175 (1993), the commissioner of DEP brought an environmental enforcement action against a number of individuals and corporations for violations of a variety of environmental laws from the dumping of trash in Bridgeport and Monroe. The case is important for a number of environmental reasons not related to wetlands matters and thus, we'll pass over those aspects.

Of interest to us is the illegal dumping of solid waste in wetlands on Main Street in Monroe. The trial court found that the defendants had put the materials in the wetlands without a permit and assessed a penalty of $250 per day for the 651 days that the materials remained in place as of the day of trial. That's some whopping penalty: 250 x 651 = $162,750.

On appeal the defendants disputed neither the daily amount of the penalty, $250, nor the finding that they dumped the waste materials in the wetlands. Their appeal: the fact that they could be penalized for each day the materials remained in violation.

The Supreme Court examined the statutory language regarding penalties, citing the tidal wetlands act reference, § 22a-35: "in the case of a continuing violation, each day's continuance thereof shall be deemed to be a separate and distinct offense." This identical language is found in the inland wetlands act, in the middle of § 22a-44 (b). The Supreme Court held, in light of the public policy expressed in the legislative finding in § 22a-36 (the inland wetlands act) that a violator can be penalized both for the act of placing the unpermitted material in the wetlands and for each day it remains there.

At the time the case was decided I worked in the Attorney General's Office and I asked my colleague who handled the case why the Supreme Court had referred to the tidal wetlands act. He honestly responded that he had provided the statutory references to the tidal wetlands act.

Because this case was not brought by a wetlands commission and because on its face there are a number of statutory references to the tidal wetlands act, this case has all but disappeared from the case law under the Inland Wetlands and Watercourses Act.

The case deserves to be daylighted. It instructs a wetlands commission that it can seek penalties for the violation and the period it remains so. It behooves a violator to remove the violation sooner rather than later, even if the commission hasn't yet discovered the violation, as those potential daily penalties can really add up.