East Lyme Wetlands Agency holds off decision to extend review area
East Lyme — The Inland Wetlands Agency on Monday postponed a decision to extend its upland review area by an additional 400 feet until next month, heeding warnings from its attorney that the decision likely will be appealed in court and that agency members should spend additional time reviewing submitted information.
Town attorney Mark Zamarka told the agency that any decision the agency makes regarding its upland review area must be “supported by substantial evidence.”
“I can guarantee you that any change that is made will be appealed and you are going to have four or five really good land-use attorneys coming after the decision,” he said.
“The judge is going to ask ... show me where in the record it specifically supports the change for 50 feet, 100 feet, 200 feet, whatever it may be.”
He also cautioned that the agency has a finite scope in its jurisdiction, stating that it is limited “to considering only environmental matters that impact wetlands,” and does not have authority to change its regulations solely on the basis of protecting the town’s groundwater.
“The Connecticut Supreme Court has held time and again that any wetlands agency is not a little environmental protection agency,” he said, also explaining the town has its own Aquifer Protection Agency through its Zoning Commission to oversee groundwater protection.
The agency in May unanimously
“I can guarantee you that any change that is made will be appealed and you are going to have four or five really good land-use attorneys coming after the decision. The judge is going to ask ... show me where in the record it specifically supports the change for 50 feet, 100 feet, 200 feet, whatever it may be.”
MARK ZAMARKA, EAST LYME TOWN ATTORNEY
proposed changing its regulations to extend the upland review area from 100 feet to 500 feet. The agency is tasked with regulating, but not prohibiting, activity within its upland review areas, or the 100-foot area surrounding any watercourse or wetland other than the ocean, to ensure such activities will not have adverse impacts on the town’s surface water.
The decision was made after members of the agency had worked for more than a year to update various parts of its regulations — which had been unchanged since 2011 — with Inland Wetland Agent Gary Goeschel, who also works as the town’s planner.
To streamline the revision process for the public, during a meeting in May agency members proposed to extend the upland review area, which they considered the most important aspect of the regulations, and opted to wait to address other potential revisions.
In the time since, the agency has held two virtual public hearings, including one in July that lasted for several hours and drew more than 50 people, as well as dozens of comments from the public that expressed divided views on the matter.
While some residents have voiced concerns for how such changes may burden homeowners and town staff, many have stated that efforts to preserve the town’s delicate drinking water supply should outweigh those concerns and concerns about how the changes could curb development in town.
Goeschel estimated in July that extending the upland review area by another 400 feet could place 80% to 90% of the approximately 9,000 residential and commercial properties in town within the upland review area — requiring those residents to pay for and file a permit application with the town should they want to build a deck or shed on their property, install a pool or replace a septic system, among other things.
Depending on the extent of the work, some homeowners would need to go before the agency to present their projects before receiving permits, while Goeschel argued that he alone would be left to approve or deny a large majority of those applications, putting strain on his duties as both the wetlands enforcement officer and town planner.
Developers proposing new projects, such as apartment buildings or subdivisions, within the review area would be required to go before the agency for review, as is the case now with the 100-foot upland review area.
Goeschel said by phone this week it is not yet clear when the new regulations, if passed, would take effect and whether they would apply if they were immediately appealed in court.
Agency members have said that extending the upland review area will better allow them to protect the town’s bodies of water and drinking water aquifers, which they believe have been threatened by development over the years, by allowing the agency to review a greater number of large developments being built near surface waters.
Agency members also argued Monday that the town’s surface and ground waters are inextricably linked and that pollutants that end up in the town’s surface water inevitably will pollute the town’s delicate drinking water sources.
East Lyme draws its drinking water from seven separate wells throughout town and, in summer months, from the Lake Konomoc reservoir in Waterford, which is controlled by the city of New London. All seven wells draw from either the Pattagansett or Bride Brook aquifers.
Monday’s public hearing was attended by just a few residents, two of whom voiced concerns highlighting the burdens a 500-foot review area could place on a large majority of residents. Agency members then submitted numerous reports and studies into the public record in an effort to adequately support any future decision the agency may make on extending its upland review area, as recommended by Zamarka.
Agency member Ted Koch suggested the agency should consider a 300-foot-upland review area instead of the proposed 500-foot setback after listening to the concerns of residents, developers and their attorneys, as well as advice provided by attorney Zamarka.
He said the agency could consider extending its upland review area only around critical or important bodies of water, or within certain critical watershed areas that directly feed into the town’s drinking water or Long Island Sound, and maintain a 100-foot-review area throughout the rest of town to lessen potential burdens to homeowners.
“I know everybody is worried about an appeal,” Koch said. “I’ve heard what everyone has said about practical considerations and that 500 feet everywhere will tie us up. For practical purposes, we don’t need to walk into a snare. We don’t need to create unnecessary litigation that we might lose.”
He noted that on the other hand, homeowners also desire a guarantee of clean water in their backyards, before making a motion for Goeschel to provide the agency a report detailing which bodies of water would be most critical to protect, as well as information about how applying the new regulations in a variety of scenarios could impact homeowners and developers.
“It’s not just groundwater we want to protect,” Koch said. “The wetlands affect the farmland, they affect recreation in town, they are related to our geological features, even our cultural and historical heritage.”
The agency voted 4-3 against allowing Goeschel to research and submit such a report.
Agency Chairman Gary Upton said he feared a report from Goeschel could be used against agency members in court. “I think it’s been made fairly clear where Gary Goeschel ... is on this both publicly and internally,” Upton said.
Goeschel said he would be more in favor of the agency passing a 300-foot upland review as opposed to the 500-foot option. “Why? Because it’s specific,” he said. “Particularly in the Pattagansett watershed you have a whole chain of lakes and streams and ponds that make its way to Long Island Sound and you clearly have the majority of our town wells in that aquifer.”
The agency said it will continue deliberating at its next regularly scheduled meeting in September after all members have had time to review information submitted into the record and determine whether that information adequately supports the proposed change.