I’m still
coming off of the grammar- and punctuation-high from the Supreme Court’s
decision in Indian Spring Land Company v.
Inland Wetlands and Watercourses Agency, which was officially released on
July 5, 2016. The Supreme Court clearly states three times in the decision that
the plain language of section 22a-40 (a) (1) provides that road construction
directly related to a farming operation is excluded from municipal wetlands
oversight.
It is clear
that Indian Spring Land Company is free to construct its bridge (the footings
of which will not be located in wetlands) and to put gravel fill in several
vernal pools in order to construct its road – all without a wetlands permit.
What is the
take-away message for future farmers who will be constructing roads in wetlands
and watercourses? Alas, that’s not so
clear. At the end of the decision the
Supreme Court explicitly affirms its
decision in Taylor v. Conservation
Commission, 302 Conn. 60 (2011), stating “section 22a-40 (a) (1) does not
permit the filling of wetlands for the purpose of road construction, regardless
of the road’s relation to the farming operation, because the statute clearly
provides for the regulation of activities that require wetlands to be
filled.” Then, it narrowed its holding
in the Indian Spring Land Company case:
“In conclusion, the plain language of section
22a-40 (a) (1) provides that road construction directly related to a farming
operation is excluded from the regulatory oversight of municipal wetlands
agencies, unless the manner of that
construction implicates some other matter within the scope of that oversight,
as in Taylor. Accordingly, the agency had no jurisdiction
to attach special conditions to the plaintiff’s gravel access road into the
northeast compartment, as the road was to be constructed solely for the purpose
of transporting equipment onto the property to complete forestry work. We therefore conclude that the trial court
improperly that the trial court improperly determined that the agency had jurisdiction
over the plaintiff’s access road and improperly rendered judgment dismissing
the plaintiff’s appeal.”
(Emphasis added.)
It’s time
to pull out the Taylor decision and
compare apples to apples, or in this case, gravel road to gravel road. Two of
the three roads proposed in Taylor as
“necessary for vehicle/tractor access to the central crop of Highbush
Blueberry” and as “necessary for vehicle/tractor access to the nursery crop
production” are located in wetlands. Taylor, 302 Conn. 60, 62-63 (2011). The Taylor
farm roads will be constructed with gravel. Taylor, 302 Conn. 60, 66 n.8
(2011). The Indian Spring Land Company road will be constructed with gravel and
will fill “several vernal pools.” In Taylor the gravel road will be
constructed and fill wetlands and in Indian
Spring Land Company the gravel road will be constructed and fill a
watercourse.
What exactly is the difference in
the manner of construction between the Taylor scenario and the Indian Spring
Land Company one? The
Supreme Court did not identify one.
My
currently Lyme-addled brain cannot see a difference in “manner of
construction.” Gravel fill to gravel
fill. If gravel fill was subject to
wetlands agency jurisdiction in Taylor
why isn’t that same gravel fill in Indian
Spring Land Company subject to agency jurisdiction? The Supreme Court explicitly stated there is
a difference in the manner of construction.
But there’s no "there" there. The
manner of construction is the same: gravel is used to construct a road.
The Supreme
Court could have examined a different phrase in the farming exemption which
differentiates between filling of wetlands and filling of watercourses with
continual flow. That is, the exemption
does not allow within the exemption filling of wetlands or watercourses with
continual flow. Thus, it would seem that filling of watercourses that are not
of continual flow could fall within the exemption. If the only resources to be
filled with gravel in Indian Spring Land
Company are vernal pools, perhaps then the gravel fill would fall within
the exemption. However, there are too many unknown facts: are the vernal pools
surrounded by wetlands? Do the vernal
pools have continual flow?
Evidently the parties did not make
those arguments and the Supreme Court did not rule on that basis.
What’s
an agency member to do when faced with a farm road proposal directly related to
the farming operation? Those who believe
the proposal before the agency is similar to Taylor will rely on that case and require the farmer to get a
permit. Those who believe the proposal
is similar to Indian Spring Land Company
will rely on that case and find the proposed construction exempt. And both sides will be right . . . at least
until the next Supreme Court decision is issued which we can hope will straighten
out whether gravel is gravel is gravel
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