Editorial: Myth Of Wetlands Enforcement In Connecticut

The Connecticut Law Tribune

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The sad fact is that if you want to destroy wetlands in Connecticut and get away with it, you can. It is not that hard to do, despite what appears to be a comprehensive and strict statutory structure that should stop you in your tracks.

Here's how you do it. You own property on which there are wetlands and you alter that property in a way prohibited by state statutes and your municipal regulations. Perhaps you fill in a marsh or clear cut a swamp or build right over a vernal pool. Whatever action you take, you take it without applying to the local wetland agency that regulates such actions.

But the agency finds out and you receive a notice of violation or cease-and-desist letter or some similar notice from the town's wetland enforcement agent

The agency may hold a hearing on the cease and desist notice within 10 days of its issuance [Connecticut General Statutes §22a-22(a)]. If you do not like the decision from the hearing, you may appeal to Superior Court, gaining about a year's delay at that point. Though an injunction requiring you to stop the activities that are causing wetland destruction is theoretically possible, they are rarely granted. Or you could apply for a wetlands permit, after the fact, to bless the work you have already done. If granted, it is likely to include conditions requiring you to mitigate, perhaps even remediate, the wetland disturbance you caused. And you can appeal that, gaining a year or so. Again, injunctions in such situations are rarely granted—so rarely that many municipalities no longer try.

The town may choose a more aggressive approach and bring suit in Superior Court, as permitted by C.G.S. §22a-44(b). The court has automatic jurisdiction and "all costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorney's fees." It sounds good but almost never happens. Even when the violator is represented, the court makes every presumption in its favor. Even when the history of violations goes back years, even when the violation is demonstrably willful or knowing [see §22a-44(c)], even when there is no viable defense, costs and fees are rarely awarded. The most likely result in court is for the violator to be given more time to correct the violation, though it is likely that the municipality has already given the violator more time, before resorting to litigation.

The problem is not new. Terry Tondro, the late University of Connecticut law professor, in his "Connecticut Land Use Regulation" (2d. ed. 1992), made the same lament: "More disturbing is judicial tolerance of delaying tactics by violators of the regulations. Many examples of extensive delays, benefiting a savvy and serious owner, can be found in the recorded cases." He then describes wetland violation cases that took between five and 10 years to resolve. The situation is no better today. Unfortunately, there is virtually no help available from the Department of Energy and Environmental Protection, where the unit dealing with wetlands is so seriously under-staffed it is not a meaningful resource for municipalities.

Most wetland violation cases never make it to court because most violators cooperate with local officials, whose goal is to achieve compliance, not to punish violators. In those cases, the regulatory structure works as it should. But in a few cases, a determined violator will not cooperate and will not be deterred from his course of action.

When cases appear in court, they should receive swift and serious attention, and if the violation is confirmed through evidence, the punishment authorized by statute should be meted out. Judicial tolerance for wetland violations is hard to understand. The statutory declaration of policy for wetlands is that "the remaining wetlands of this state are all in jeopardy" and it is "the public policy of this state to preserve the wetlands and to prevent the despoliation and destruction thereof." The courts need to understand this and play their appropriate and necessary role in wetland protection.•

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