Morris IWWC

During the fall of 2008, a project in Morris, Connecticut is being reviewed with regard to wetland impact of the project. Consultant REMA is active on this project and offers insight into the 2004 amendment to Section 22A of the Connecticut statutes that had the effect of expanding the jurisdiction of inland wetland commissions.

The efforts of REMA and local intervenors encouraged the local commission to add significant conditions to their approval of the application. These conditions eliminated the potential for piles of preservative impregnated sawdust to seep into a nearby stream and groundwater. They also limited floodlights from shining over the habitat.

The Morris IWWC is not alone in its attitude towards wildlife jurisdiction. There were several years when IWWC really did not have any jurisdiction over wetland or upland wildlife, after the AvalonBay supreme court decision. They still don't have it over upland wildlife. But then the May 2004 amendment to the wetlands statute was passed stating that plants, wildlife and aquatic life and habitat are a part of wetlands (not just the soil and water). That amendment changed things, but it was not as widely publicized and explained as it should have been - just a few articles in [local landuse-related publication] The Habitat.

Also, developers' attorneys keep representing to local boards as if it never happened. Admittedly there is a significant limitation to wetland commissions' jurisdiction, a condition added in response to the Home Builders' Lobby. The amendment states that impacts to biota resulting from activities happening outside the wetland boundary have to be directly associated with a physical impact to the wetland. For example simply "chasing away shy birds who were anxious because they saw people" would not count.

However, fortunately, habitat, as a part of the wetland, is not mentioned in this condition and is not excluded from jurisdiction over the out-of-wetland-impacts. For example, if the brook is heated up by sun let in by tree clearing in the buffer, and brook trout habitat is accordingly degraded, the commission may regulate that tree clearing in the buffer. The same applies to light pouring in from the buffer, which causes invasive plants to germinate and grow rapidly.

There have not been court cases yet as to whether light, noise, and vibrations count as "physical" impacts in addition to the accepted types of physical impacts: temperature, hydrological changes, soil changes, sediment deposition, and water pollution. However in one court case (Tim Melon vs. Town of East Haddam) there was a ruling that the vegetation itself was a physical part of the wetland, and accordingly regulated. Whenever such a court case involving impacts from light, vibration (important for reptiles), or noise takes place, it is reasonable to expect it would be be decided in favor of the advocates of the affected wetland biota. Therefore, and meanwhile, advocates should operate as though light and noise impacts are physical. After all, are they biological, spiritual, psychological, or hypothetical?

Old school attorneys may not quite believe the 2004 amendment happened or is applicable.

In Morris, area-sensitive listed birds (Savannah Sparrow and Bobolink) actually would live within the wetland, if it is preserved, so they are under IWWC jurisdiction. Below is the actually wording of the amendment:

Substitute Senate Bill No. 445
Public Act No. 04-209
AN ACT CONCERNING JURISDICTION OF MUNICIPAL INLAND WETLANDS COMMISSIONS.
Be it enacted by the Senate and House of Representatives in General Assembly convened:
Section 1. Section 22a-41 of the general statutes is amended by adding subsections (c) and (d) as follows (Effective from passage):
(NEW) (c) For purposes of this section [Section 22a-41], (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.
(NEW) (d) 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.
Approved June 3, 2004

Advocates should be warned that there are at least two wildlife biologist-consultants who charge many thousands of dollars for a very skimpy listed species report, one out of Torrington and having an odd Dutch name.