We've always known that a Wetland Commission can't deny an application based on a "possible" adverse impact, or that a proposed activity "may" affect a wetland or watercourse. A recent case, summarized below, has made it clear that a Commission may not deny an application even where the Commission's own engineer testified that the project was "likely" to cause harm to the regulated area. "Likely" is not enough. There needs to be specificity, and that there is a "reasonably degree of certainty" in order to deny.
You'll note that the decision to deny was otherwise upheld because the Court determined the applicant did not provide a complete application in response to the Commission's requests.
- AC34298
- Three Levels Corp. v. Conservation Commission
Owner of 14
acre residential parcel with approximately 2 acres of wetlands, a vernal pool,
and within the Saugatuck River flood plain, applied to the IWC to build 10
units with their own septic systems and single water supply. The
application was denied when the Commission agreed with its engineering expert
that the applicant had not adequately provided for storm water runoff to the river
and as such this was likely to cause harm to the river and nearby
wetlands. The Commission also found that the application was incomplete
because it failed to address several questions raised by its consulting
engineer. The trial court reversed and the Commission then
appealed.
First the
Appellate Court reviewed the substantial evidence test which must
be present in order for a court to defer to an agency’s decision. It then
concluded that the Trial court correctly held that the Commission’s engineer failed to identify any
specific adverse effect that would happen, but rather made generic statements
that the lack of erosion control could lead to some type of adverse effect.
The expert’s opinion that these types of systems also have a high failure
rate when not maintained was deemed speculation. This is similar to
another recent decision [Estate of Casimir Machowski] which held
that it was not enough for the town’s engineer to opine that a proposed
hillside detention basin was not designed properly and might fail. The
courts are really saying with these decisions:….Hey Mr. or Mrs. Engineer,
stop dancing around the issue and being reluctant to outright criticize the
applicant’s engineer. If you want your decision to carry any weight you
must say why the application is wrong, how you would do it differently, and if
it might involve a failure…say that to a reasonable degree of certainty.
Commissions should be alert that more forceful engineering opinions are now
being required by the courts. In short, while the case law holds the
courts will “defer” to the agency’s decision, that’s not really accurate due to
the parsing going on over the underlying evidence.
Here the
Commission still managed to get the decision reversed because the applicant
kept side stepping repeated requests for more information on erosion controls
and chemical impacts made by the Commission’s engineer. The regulations
specifically allowed the Commission to seek follow up details and thus the Commission
was entitled to conclude the application was incomplete when those answers were
not forthcoming.
A final
issue that came up in this case was the authority of an IWC to regulate storm
waters from outside the regulated wetlands but which flow into them. Here
the decision notes that a
wetlands commission has authority to regulate outside activities if it passes a
regulation allowing it to do so. Here the Redding Commission
properly amended its regulations in accordance with the Model Act to say it
regulated “any” activity impacting wetlands. That was sufficient and
there was no need to specifically identify “storm water discharge”, nor to have
regulations specific to storm water management.
