East Lyme Triples Wetlands Review Area, Raises Questions

EAST LYME — By a vote of 5 to 2 on Monday night, the town’s Inland Wetland Agency tripled its mandatory review area from 100 to 300 feet for projects around inland wetlands and watercourses, giving the agency the broadest blanket oversight in the region.

The review area is the distance from an inland wetland or watercourse where the agency reviews all projects that could affect the waters, including moving dirt, cutting trees, modifying the ground, or building on it.

The decision came after five months of deliberations, beginning with a July proposal to expand the review area to 500 feet, which would have encompassed most of East Lyme. 

The new regulation takes effect on Tuesday, barring what town officials expect will be a court appeal.

In an interview by telephone on Thursday, Gary Upton, chair of the Inland Wetland Agency, said that the 300 foot review area is an improvement over the existing 100 foot review area, but he expressed disappointment that the agency couldn’t agree to the initial proposal to extend the review area to 500 feet.

The change is the latest touchpoint in East Lyme over conflicting priorities of development and environmental protection. Upton said that the goal was to give the agency the ability to fulfill its charter obligations – to uphold the federal Clean Water Act.

Upton said it was better to leave the past in the past than to try to bring existing developments in for review, but that there are commercial and residential developments that the agency did not review, but should have reviewed because they could have potentially impacted wetlands and watercourses. He said that the larger upland review area would allow the agency to review more of these projects going forward.

“I want those people to know that we’re not going to come and harass them,” Upton said of existing development.

East Lyme town planner and wetlands enforcement officer Gary Goeschel said that the change will broaden the area where the town and the agency can look for potential impacts to wetlands and watercourses, but Goeschel said he was unsure how the change will actually reduce those impacts.

Under the revised rules, anyone within 300 feet of an inland wetland or watercourse will have to apply for an inland wetland permit for regulated activities like moving or filling land, or building on it. Nothing else in the regulations has changed, so permit applications will be subject to the same review by Goeschel, he said.

There are no other towns along the coastline or in Middlesex or New London counties that have a general review area over 100 feet from inland wetlands and watercourses – the standard for Connecticut towns established by the state Department of Energy and Environmental Protection — according to a review by CT Examiner of town regulations.

Some towns in the region have narrower review areas – including Montville’s 50-foot review area and Salem’s 75-foot review area. 

Some towns have adopted review areas larger than 100 feet, but only around specific water bodies. 

The town of Groton mandates a 100-foot review area, which expands to 200 feet around five specific brooks, and to 150 feet around four specific streams, named in the regulations. 

Other towns, including Killingworth and Old Lyme, maintain expanded review areas around seasonally dry vernal pools.

Upton said that inland wetland regulations in East Lyme, like in most towns, give the agency the authority to review projects outside the upland review area already if town officials believe those projects will have an impact on wetlands or watercourses. 

The difference, according to Upton, is that now projects will be brought to the town’s attention, where previously the agency was responsible for uncovering them.

“We could go to someone and say, ‘You didn’t make an application, but we feel you should have, and we’re giving you a cease and desist.’ By law, we can do that,” Upton said. 

“None of the commissioners are going to support that,” said Upton. “We become the worst guys in town if we do that. But if it had been brought to the commission, because it should have been, no one would want to stop it, we just want to make sure it’s done well. Because at the end of the day, we know that the infrastructure that they have in place now is probably more protection for the environment than what was there before.”

Is it enforceable?

Goeschel said that he agrees with the goal of protecting groundwater in East Lyme, but questioned the mechanism for addressing the problem. The town’s drinking water, he said, already shows increased sodium levels which have been linked to the application of salt and brine to the roads.

“The state and the town aren’t going to stop salting the road, and you add in climate change and drought conditions and now you have less water, and it becomes something that has an adverse impact on aquatic wildlife,” Goeschel said. “But increasing the upland review area doesn’t stop that.”

Goeschel said there are meaningful changes that can be made to help protect water quality, but said he hasn’t seen evidence that changing the upland review area will do that. He said specific low-impact development standards that could help mitigate the effects of pollution from roadways could be a better option.

Local developer Bob Fusari, who built the Spinnaker and Sea Spray condominium communities, said the changing regulations wouldn’t stop him from building, but it would create more paperwork for the town and for homeowners.

Fusari said the agency should be looking at where pollution is coming from and address those problems directly. If the issue is roads and highways running across the town, the regulation isn’t going to fix problems that already exist, he said.

“You can stop building in East Lyme right now, you can put it to 1,500 feet, it’s not going to change the issues you had in town,” Fusari said. “Until you fix those issues, you’re not going to fix the pollution.”

Opponents of the change have also argued it would be impossible to enforce because there are pockets of unmapped wetlands in the coastal town that homeowners wouldn’t be aware of unless they did their own survey. And with an upland review area of 300 feet, they could have to survey other people’s properties, which may not be possible.

Upton disagreed with that argument, saying the mapping of wetlands is very comprehensive, based on satellite imagery, ground temperature and other measurable factors. Upton said it wouldn’t be hard for someone to know there was a wetland neatby with a little bit of diligence.

“What we’re talking about would be maybe half a percent, if even that,” he said.

Goeschel said that the map available on the East Lyme town website showing wetlands and watercourses is a generalized map based on a 1988 U.S. Geological Survey soil study of New London County, and it’s more a tool for the agency to look at to see where there is a good likelihood that there are wetlands.

“It’s the onus of the landowner to determine if they do have wetlands on the site, or within 300 feet,” Goeschel said. “Usually, if you have wetlands on your property, you would hire a soil scientist to go delineate the wetlands, but you can’t tell them to go delineate wetlands on someone else’s property. When you’re 300 feet away, you’re probably not cognizant of the fact that there may be a pond or stream.”

A one-man department

Goeschel also expressed concern that as the town’s only wetlands enforcement officer, he simply won’t be able to keep up with the increasing number of applications for permits resulting from the new review area.

According to Goeschel, his workflow varies depending on the economy, but that he usually reviews three to five permits a month for projects like pools, decks and sheds. But he said his workload has increased significantly since August and he’s already falling behind on reviewing the 10 permits a month he’s reviewing now. 

Since the town’s planning and wetlands agent positions were consolidated, Goeschel said that he’s only been on the books for one day a week as the wetlands agent and the town is going to have to figure out how to keep up — either by adding hours or hiring more staff.

“I’m one employee. I’m not certain what kind of backlog may or may not result. Either way, we’ll do the work, we won’t say no,” Goeschel said. “So it is what it is. We’ll figure out a way.”

He also warned that the delays could push the town closer to its statutory 65-day deadline to render a decision on applications

“What I can see is really limited to the public right of way and neighbors alerting me to something going on, but aside from that it’s hard to police the watercourse,” Goeschel said.

Upton dismissed concerns about the increased workload and possible additional costs to the town to hire staff.

“We can’t be thinking that way when we’re thinking about protecting the drinking water and the environment,” Upton said. “It’s like ‘Oh, you’re right, it’s gonna cost (the town) money, we shouldn’t do this.’ Then let’s just take the 100-foot rule and get rid of it, because that costs us money too. Increasing oversight is going to cost more money, but it’s not going to be proportionately three times the amount of money.”

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