Issue 3.2 November 2015 
  A Newsletter for 
 Municipal Inland Wetlands Agencies 
   CT Department of Energy and Environmental Protection,  Inland Water Resources Division
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Course Deadline Approaching: Wetlands Agency Comprehensive Training Closes Dec. 15th!
  
Statutes... Regulations... Case Law:  What Does An Agency Implement?
  

 

 

 

Permit Modifications:  Do the "Factors for Consideration" Need to be Reexamined?

 

Hydrilla Found in Coventry Lake:  UConn Class Finds Highly Invasive Aquatic Plant

 

Course Deadline ApproachingTrainingDeadline15th
Wetlands Agency Comprehensive Training Closes Dec. 15th!
The DEEP's Municipal Inland Wetlands Agency Comprehensive Training Program consists of an online course offered through Central Connecticut State University (CCSU), and covers a range of legal, administrative, and scientific subjects relevant to municipal inland wetlands agency regulation. 
Program records for 2015 indicate a large number of individuals who have registered for the course but have either not completed training or have not started the course.  If you are a registrant please remember the course closes on December 15, 2015.  In order to receive a certificate of program completion you must complete all 10 modules and the course evaluation by midnight on December 15th. 
The online course can be accessed through CCSU's website.  If you have misplaced your login information please contact Madelyn Sowinski, CCSU's Center for Public Policy and Social Research, at m.sowinski@ccsu.edu.
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Statutes... Regulations... Case LawCaseLaw
What Does an Agency Implement? 
If you are a new member of a municipal inland wetlands agency you may have received a copy of your agency's regulations, and a copy of the Connecticut Inland Wetlands and Watercourses Act (IWWA). How do these two documents relate? 
In Connecticut, the General Assembly enacts laws, such as the IWWA.  With this particular law, the General Assembly has delegated the responsibility for carrying out the provisions of the IWWA to each municipal inland wetlands agency. In fact, the IWWA declares it is the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities. The law specifies a number of requirements that must be followed when a municipality regulates such activities. For example, the municipal inland wetlands agency must establish criteria and procedures for the review of applications. However, the law does not include all the details needed to explain how the agency will accomplish this. The particulars are provided through regulation. Regulations establish specific requirements about what is legal and what isn't. Therefore the provisions of the IWWA are implemented and enforced at the municipal level through a set of regulations. In adopting regulations, the municipal inland wetlands agency may clarify vague language found in the law, or address municipal concerns, provided the agency stays within its delegated authority. If the General Assembly amends the IWWA, an agency's regulations must also be amended to conform to the law. If there is a conflict between the law and a municipal inland wetlands agency's regulations, the provisions of the law govern.
But wait, there is more... decisions of municipal inland wetlands agencies may be appealed to the Superior Court. The Superior Court will evaluate whether the inland wetlands agency has properly implemented the IWWA, and will interpret the law and the municipality's regulations in the process. Sometimes the decisions of the Superior Court are appealed to the Appellate Court, and further appealed to the Supreme Court. Interpretations of the IWWA and of municipal regulations by the Superior Court are binding on the agency from which the controversy arose unless further appealed, and may provide guidance to other municipal inland wetlands agencies unless further appealed.  Decisions of the Appellate Court are binding on all municipal inland wetlands agencies unless overruled by the state Supreme Court, and decisions of the Supreme Court are final and binding upon every municipal inland wetlands agency.  In other words, this "case law" needs to be acknowledged, as it may guide agency process and decision, and may need to be incorporated into an agency's regulations.  
The "law", therefore, is more than just your municipal inland wetlands agency's regulations or the IWWA. The law also consists of the interpretations by the Appellate and Supreme Courts. Each year the DEEP's Wetlands Management Section offers a Municipal Inland Wetlands Agency Continuing Education Workshop on statutory and court case updates. A training announcement is provided to every agency in mid-spring. Workshops are typically held in June. Court case outlines from past workshops are available on the Wetlands Management Section's " Legislation, Regulation and Case Law " web page.   
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Permit Modifications PermitModifications
Do the "Factors for Consideration" Need to be Reexamined?
In June 2015 the DEEP Wetlands Management Section conducted a Municipal Inland Wetlands Agency Continuing Education Workshop on legal and administrative updates with the assistance of the Office of the Attorney General (AG).  The AG's Office reviewed the major points raised by recent court cases.  An interesting Superior Court case centered on a modification to a permit.  Please note that this is a Superior (trial) Court case.  Appellate and Supreme Court decisions are binding on every municipal inland wetlands agency.  Trial court cases do not set precedent and simply provide insight.     
In this Superior Court case, the plaintiff appealed the municipal inland wetlands agency's decision to revise a condition of approval of a permit claiming that in making such decision the agency failed to consider the six factors of consideration pursuant to the Inland Wetlands and Watercourses Act section 22a-41; failed to consider feasible and prudent alternatives; and did not state the reasons for its decision on the record.     
The Superior Court disagreed with the plaintiff on the first argument, noting that the Appellate Court held in Lorenz v. Inland Wetlands and Watercourses Comm'n., 124 Conn. App. 489 (2010), that an agency must consider the section 22a-41 factors only when issuing a permit, not when considering a modification of a condition of an approved permit. 
In regard to feasible and prudent alternatives, the court noted that section 22a-41 requires the agency to find that a feasible and prudent alternative does not exist when such agency determines that the proposed activity may have a significant impact on wetlands or watercourses.  Since this instance did not apply, the agency was not required to consider feasible and prudent alternatives.    
In regard to the agency failing to state the reasons for its decision on the record, the court concluded that the agency was not required to do so.  The court observed that the record contained substantial evidence that the agency considered the potential impacts of the modification and concluded that the modification would have no adverse impact.     
While this was a Superior Court case it nonetheless provides direction for an inland wetlands agency.  An agency has the discretion to determine whether a proposal constitutes a modification of an existing approval, or if it requires the filing of a new application.  There is no bright-line test for making such determination.  Relevant considerations are whether the proposal is within the boundaries of the prior approval (Consolini v. Torrington Inland Wetlands Comm'n, 29 Conn. App. 12 (1992) (commission properly concluded that a proposed smaller shopping plaza was a modification of the prior approved shopping mall)) and whether the proposal involves "substantial changes" or is a "significant departure" from the prior approval (McDonald v. Fairfield Town Plan & Zoning Comm'n, 2014 WL 6994806 - Oct. 28, 2014 (commission properly concluded that proposed minor lot changes in subdivision plan were a modification to prior approved plan)).  A modification of a prior approval does not require the agency to reconsider the section 22a-41 factors from the original approval, or to consider feasible and prudent alternatives. 
It is important to note that while an agency has the discretion to determine whether a proposal constitutes a modification of an existing approval, or if it requires the filing of a new application, the agency must have a regulation that allows it to accept and consider such permit amendments (Lorenz v. Inland Wetlands and Watercourses Comm'n., 124 Conn. App. 489 (2010)).    
This article is a condensed version of a presentation offered at the 2015 Municipal Inland Wetlands Agency Continuing Education: Legal and Administrative Updates workshop, and is DEEP's administrative advice.  It is not legal advice.  If an inland wetlands agency seeks legal advice please consult the town attorney. 
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Hydrilla Found in Coventry LakeHydrilla
UConn Class Finds Highly Invasive Aquatic Plant
In late September, DEEP announced that a highly invasive aquatic plant had been found in Coventry Lake (Wangumbaug Lake) in Coventry. An aquatic plant biology class from the University of Connecticut found several fragments near the boat launch that was confirmed as hydrilla. Hydrilla, which is not native to the United States, has become a major problem in the southeast and is beginning to spread into the northeast.  There are a few water bodies in Connecticut (the Silvermine River and several small ponds with no public access) known to have established hydrilla populations. 
Hydrilla spreads aggressively, forms dense mats of vegetation, easily outcompetes and displaces native plants, alters aquatic habitats, interferes with recreational activities, and is very difficult to control once established.  The source of the plant fragments is unclear at this time and DEEP is currently arranging to have Coventry Lake surveyed to determine the extent of the hydrilla infestation, as well as the most effective control method. Additionally, DEEP's Boating Division will increase staff presence at the boat launch to inspect boats and trailers and to provide information on invasive species and proper boat decontamination methods. 
Connecticut's municipal inland wetlands agencies often conduct site walks and may encounter aquatic invasive species.  Staff of such agencies may also be in a position to educate town citizens.  All b oaters, including kayakers and canoeists, should follow Clean, Drain & Dry precautions to prevent the spread of invasive plants and animals, including hydrilla.  Remember... anglers and other recreational users can also spread invasive organisms in waders, boots or other gear and therefore should apply the same Clean, Drain & Dry precautions to equipment. 
Before leaving a boat launch:
  • CLEAN: all visible plant, fish, and animals as well as mud or other debris. Do not transport them home.
  • DRAIN: all water from every space (including bilges, live wells and engine cooling systems) and item that may hold water.

At home or prior to your next launch:

  • DRY: anything that comes in contact with water (boats, trailers, anchors, propellers, etc.).
If drying is not possible, you should take extra care to thoroughly clean your boat prior to the next launch. The techniques listed below are advised to decontaminate your vessel:
  • Wash your boat with hot, pressurized water.
  • Dip equipment in 100% vinegar for 20 minutes prior to rinsing.
  • Wash with a 1% salt solution (2/3 cup to 5 gallons water) and leave on for 24 hours prior to rinsing.
  • "Wet" with bleach solution (1 oz to 1 gallon water) or soap and hot water (Lysol, boat soap, etc) for 10 minutes prior to rinsing.
When Fishing:
  • Do not dump your bait bucket or release live bait! Avoid introducing unwanted plants and animals. Unless your bait was obtained on site, dispose of it in a suitable trash container or give it to another angler.
  • Do not transport fish, other animals or plants between water bodies. Release caught fish, other animals and plants only into the waters from which they came. 
Individuals wishing to report possible sightings can contact DEEP's Inland Fisheries Division at 860-424-3474. If you are interested in learning how you can educate boaters on ways to prevent the spread of invasive species, contact the Boating Division at 860-447-4339.  Information on invasive species is available on DEEP's website including a printable brochure on aquatic invasive species and boating precautions.  
 
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The Connecticut Department  of Energy and Environmental Protection is an Affirmative Action/Equal Opportunity  Employer that is committed to complying with the requirements of the Americans with Disabilities Act.   Please contact us at  860-418-5910 or d eep.accommodations@ct.gov  if you: have a disability and need a communication aid or service;  have limited proficiency in English and may need information in  another language; or if you wish  to file an  ADA or Title VI discrimination complaint. 
  
A Newsletter for Municipal Inland Wetlands Agencies is published by the Connecticut Department of Energy & Environmental Protection, Bureau of Water Protection and Land Reuse, Inland Water Resources Division, Wetlands Management Section.  Editor: Darcy Winther, (860) 424-3019.