It Could Happen Here

A neighboring Inland Wetlands Commission is about to rule on a very un-popular application. According to media reports there is a small watercourse or wetland area close by to proposed activity but no actual intrusion is involved.  There have been numerous public hearings, involvements with interveners and experts on both sides of the issue.  Again, there is no actual involvement with the regulated area on the proposed building site.

Here is the dilemma that commission is in and they just may be between a rock and a hard place in making their final decision.  I bring this up for this same thing can happen here in EH, a publically un-wanted development project that has protected wetlands or a watercourse on the site but no actual involvement with these areas.  The area outside of the actual protected area is called the Upland Review Area.

Wetlands Commissions derive their regulations from State Statutes and each municipal commission follow the same rules. To have jurisdiction over activity outside of the regulated area, that being a defined wetland or watercourse, the activity must be shown to have a direct impact to this regulated area.  This is specified in CGS 22a-42a(f).

Here is where it gets sticky and commissions must be aware of when issueing a denial.  Both the Superior and Ct Appellate Courts have over-turned denials for the commissions failed to use what has become known as passing the 'substantial evidence test".  This first came up in what has become known as the River Bend case.  To have a denial hold up to a challenge in court it must be established on the record that an actual adverse impact will occur and evidence of just a general environmental impact, mere speculation, or just a general concern do not qualify as substantial evidence.  

The most recent Apppellate Court decision backing up River Bend came in a 2012 ruling known as Casimir Machowski  v. Inland Wetlands Commission, in which a denial was over-turned for the commission failed to factually prove that an impact would occur as a result of the proposed plan.  As in River Bend there was hugh public opposition to the application.  So, in a nut shell, the public must be informed as to what the wetlands commission has to deal with, what evidence they must have on the record, and establish an actual impact will occure to have a denial hold up on appeal. 

The EHIWWC will at times get these types of projects and some may have heavy public opposition.  But the public must also be fully aware that just because there maybe wetlands on the proposed site it must be factually proven that the activity will have a direct impact to justify a denial.  Just remember, evidence of a general environmental concern, mere speculation, or just a general concern no longer qualify to cause a denial.

Like it or not a wetlands commission sometimes must approve a publically un-wanted plan and leave the denial up to another agency.