Saturday, February 12, 2011

Open Letter on Inland Wetlands to the residents of East Haven

Richard Poulton

First, I want to provide a little back ground.  I served on the East Haven Inland Wetlands & Watercourse Commission for approximately 13 years, with the majority of that time as Vice Chairman.  Under the guidance of Chairman Ron Andrade, we had a group of volunteer residence making up the commission that were well schooled in its rules and regulations, and were at all times non-political in its hearing of applications.  I was also the only member of the Commission that received training by the D.E.P. in various aspects of the wetland regulations, which authorized me to approve and act on certain applications coming in for review.   In March 2010, well dedicated members were not re-appointed by the administration, and positions filled with those who will take orders from those in the administration.  This was no longer to be an independent thinking commission.  Leadership was changed.  Wanting no part of this, I resigned. 
I am writing this as to educate you on your rights and obligations when thinking of doing a project on your property and there is the possibility of a wetland area is involved that may require you to appear in front of the commission for approval.
Point of law.  Local wetland/watercourse regulations are derived from Connecticut General Statutes 22a-36 through 22a-45a.  These State Statutes are mirrored in wording, making up the East Haven Inland Wetlands/Watercourse Regulations.  I strongly recommend that anyone wishing to conduct an activity on their property to obtain a copy of the regulations prior to commencement of applying for approval as to educate yourself.  You have rights.  Not everything requires an application. Copies can be obtained at the town engineer’s office at a small cost.
You may not think you have any wetlands on your property, so you may be forced to get a soil scientist inspection at a high cost even though your property does not depict such on the town’s wetland mapping.  Wetlands in this State are determined by soil content, not necessarily just having a “wet” area. 
Even though the commissions normally will deny an application that has a direct impact or intrusion to a wetland/watercourse area, it cannot be denied if it is shown that there are no other alternatives and that all feasible and prudent alternatives do not exist (Section 10.3).   Don’t be fooled.
Most of the applications heard by the commission involve an activity in the area outside of the “wetland/watercourse”.  This is known as the Upland Review Area, and in East Haven that is described as being 50 feet from the known wetland/watercourse border.  This is the sticky point when it comes to the need for obtaining a regulated activity application at a cost of approximately $120.00.
Connecticut General Statute 42a(f), as well as Section 10.6 of the regulations, state that the commission can only regulate or condition an activity outside of the known wetland/watercourse location when that activity will have a direct impact on that wetland or watercourse.  This point is very important to understand.  The Upland Review Guidelines booklet can be obtained on line thru the DEP’s web site  or and look for inland wetland regulations or upland review info.  In a nut shell, you would be required to apply for a regulated activity if the activity is found to have a direct impact, and that is basically determined by what happens to surface water.  Will the activity cause a loss of water that will starve the wetlands or will it cause a flooding to the wetlands.   There are other areas that will cause the requirement for a regulated activity application.  Read the guidelines and educate yourself. 
The current town engineer has required everyone that has wetlands or a watercourse on their property to submit an application to the commission even though the activity will not impact the wetlands.  By the time the commission gets to review the proposal the following month, your check has been cashed.  Remember, an activity outside the wetland area can only be conditioned or regulated if the activity will have a direct impact to the wetlands or watercourse. 
Know the law, review and understand what is required by statute and regulations.  Don’t be fooled or intimidated to submit for something that is not required.  For example, in June of 2010, a home owner wanted to remove a deck and build a larger one in its place.  The activity did not involve anything that would hinder a small wetland area at the rear of his property.  He was made to submit a regulated activity application, costing approximately $120.00.  At no time was the work to be performed have an impact the wetlands.  He lost his money. The commission actually placed conditions on him forcing the property owner to dig his concrete tube holes by hand.  
Section 2 of the Regulations depicts definitions you should also be familiar with.  Such as what is a “Regulated Activity”; or when does something become a “Significant Activity”.   
Again, don’t be intimidated by these people.  The town engineer is a P.E..  He should review the proposed activity and make a determination if activity will affect the wetlands.  Again you should be aware, if activity outside the wetland area has no effect to the actual wetland area, as defined within the Upland Review Guidelines, then that activity cannot be regulated or conditioned, thus no need to apply for such a permit.  But the T.E. will tell you it is needed anyway. The only time one should be required to submit for a Regulated Activity Permit, is one, if the proposed activity is occurring in the actual wetland/watercourse area; or the activity in the Upland Review area falls under one of the defined categories within the guidelines booklet and will have a direct impact on the wetlands or watercourse.  Don’t throw your money away.  If you know for a fact and can establish that the proposed activity falls outside the preview of Upland Review, having no impact what so ever to a wetland/watercourse area and are still forced to apply for a regulated activity application, prove your point on the record at the meeting, then file a written complaint with the D.E.P.’s  Wetlands Management Section, Bureau of Water Management.  Also demand a return of your funds.  Get everything on the record. 

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