In its last update on June 24, 2009, the Ash Creek Conservation Association announced they had won a major victory with regards to the Toner dock application. The permit to build the 60 foot dock which would berth a 24 foot powerboat was denied by the DEP Adjudications Office in a Proposed Final Decision issued on June 23, 2009. This was an important ruling because it would not only impact Toner’s dock, in denying the dock application, but future dock applications, (if any) in tidal wetlands throughout Connecticut that include powerboat useage. The Final Ruling by the DEP Commissioner usually supports the DEP Adjudications Office decision, so ACCA declared victory. In a surprising move, Toner was able to get the DEP to open up a mediation session subsequent to the hearing process, which ACCA believes undermines the entire adjudications process. ACCA objected to this as being unfair, but the DEP basically said they can do what they want – with regard to environmental issues they are judge and jury, there is no appeal to a higher authority. ACCA participated in the mediations, but could not come to agreement with Toner or the DEP, who then proceeded to create an agreement to permit the 60 foot dock under specific conditions that would provide greater environmental protection to the tidal estuary. We previously incorrectly stated that Toner is in the process of building his dock now. It is the Mears dock that is under construction, not the Toner dock. We apologize for this error.We are, of course, disappointed in the final decision by the Deputy Commissioner of the DEP, Amey Marrella. She basically said that the DEP is not in favor of the dock and applauded ACCA’s efforts to prevent the dock, but stated that there currently is no specific statute, regulation, local ordinance or Harbor Management Plan that puts a limitation on the dock’s size or right to berth a motorized vessel. For the record, ACCA has met with both Bridgeport and Fairfield’s Harbor Commissions and recommended that they prohibit powerboats and docks in Ash Creek. The Bridgeport Harbor Commission was receptive to our request and said they would investigate this and decide whether or not to incorporate it into their next revision of the Harbor Management Plan. The Fairfield Harbor Commission was not receptive (we have to remember Steve Toner was the former Harbormaster for the town of Fairfield) and we were not able to make any headway. DEP’s Deputy Commissioner did give ACCA credit for its efforts in trying to protect this fragile tidal estuary. On Page 3 of the Final Decision, she states:I do, however, appreciate ACCA’s desire to protect Ash Creek, a salt marsh estuary that provides habitat and feeding opportunities for a variety of fish, shellfish, wading birds and waterfowl and which supports a state-designated natural shellfish area for hard clams and seed oysters. I understand its concern that this fragile and precious resource could be impacted by the use of this proposed dock. ACCA would like to thank Attorney Barry Hawkins of Shipman & Goodwin LLP for his pro bono representation during this multi-year legal battle. It is important to note that one positive outcome from our challenge, was the ruling by the DEP that they do have the authority to regulate the use of docks, just the dock structure. No intervenor had successfully challenged the DEP’s refusal to regulate the use of docks until this case. We have had a lasting impact on environmental law as a result of this ruling. We have attached the PDF file of the final decision, but we’ve also excerpted some of the highlights below IMPACT ON ENVIRONMENTAL LAW The applicant’s proposed dock is designed and engineered specifically to accommodate a number of private recreational uses, included berthing and launching a twenty-four foot long, outboard-powered boat. At the time of the department’s review of the application, staff was of the opinion that the governing statutes and regulations did not authorize the Commissioner to consider the intended use of the proposed dock in permitting decisions. ACCA specifically raised the question of the Commissioner’s jurisdiction to do so, which lead to the DEP’s ruling that the Commissioner had the authority to consider the environmental impacts that result from use of the dock.
