Opinion: Inland Wetlands And Watercourses Act Does Have Teeth
To The Editor:
We were surprised to read the Dec. 12, 2013, Connecticut Law Tribune's editorial "The Myth of Wetlands Enforcement in Connecticut," which describes Connecticut's Inland Wetlands and Watercourses Act, General Statutes §22a-36 to 44 as an ineffectual scheme for protecting our state's wetlands and watercourses.
The editorial writers presume without basis that the act has failed to protect these valuable resources, and that the courts rarely act swiftly to enforce its provisions. We seek to respond not just because this presumption is inaccurate, but also because it will discourage lawyers who read it, and who assume the editors speak from experience, from using the act and its proactive remedies to protect wetlands.
As attorneys, our experience has been that the act effectively provides protection and that Connecticut courts are both familiar with the act and willing to enforce it to protect the state's wetlands and watercourses. In several cases involving the unpermitted pollution or destruction of wetlands and watercourses, we have seen the Superior Court: grant temporary relief very quickly to stop harmful conduct while the cases are pending; order proven violators to remediate, or to pay for remediation of, affected wetlands and watercourses; impose civil penalties, which are directed by DEEP toward the protection of wetlands and watercourses; and award all costs and expenses, including substantial attorney fees at the trial and appellate levels. These decisions have been subject to, and affirmed in, rigorous appeal challenges. See Windels v. Environmental Protection Commission, 284 Conn. 268 (Conn. 2007); Red 11 v. Conservation Commission of Fairfield, 117 Conn. App. 630, cert. denied, 294 Conn. 918 (2009); Conservation Commission of Fairfield v. Red 11, 135 Conn. App. 765 (2012); Nature Conservancy of Conn. Inc. v. Three Feathers, Case No. FST-CV-095012734-S, 2013 Conn. Super. LEXIS 1481 (July 3, 2013).
These cases demonstrate that the act has real teeth, and that the Connecticut courts will use them.
The effectiveness of the act stems from two significant provisions. First, there is an express legislative finding in §22a-36 that failure to obtain a permit, and not the effect of such a failure, is the gravamen of a violation; the effect of the violation is an important factor, to be sure, but as an element of remedy and damages. Second, §22a-44(b) expressly provides the remedy of injunction, which means that, as a matter of law, the lack of a legal remedy is presumed.
Also, contrary to the editorial writer's suggestion, the act provides a private right of action against any violators, including municipalities that fail/refuse to enforce regulations, and not just property owners. Further, the limited "standing" rules under zoning appeals do not apply. The act takes jurisdiction from the municipality into Superior Court for all purposes, including restoration.
Finally, the Department of Energy and Environmental Protection, the U.S. Environmental Protection Agency and the Army Corps of Engineers in our cases deferred enforcing their separate rights of action as regulators to the Superior Court actions that our clients brought under the act.
Combined with other remedies, both statutory (the Environmental Protection Act) and common law (trespass), and with competent expert testimony, we have found the act to serve its purpose very well. Contrary to the editorial writers' suggestion, the act can effectively—and proactively—protect our state's valuable environmental resources.
Edward V. O'Hanlan