Ash Creek Conservation Association's Long Battle Against Docks in Tidal Estuary Results in Important New Environmental Ruling

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An important ruling has just come out of the Ash Creek Conservation Association's most recent intervention against the State of Connecticut in its continuing effort to protect the Ash Creek tidal estuary that borders Bridgeport and Fairfield in Connecticut. The hearing officer in the Toner dock case has upheld the common sense (but new in Connecticut doctrine) that the Department of Environmental Protection (DEP) has the power to not only regulate construction in sensitive ecological areas, but also to regulate the use of these structures. Until this ruling, the use of the dock could not be taken into account in considering its ecological impact.

An important ruling has just come out of the Ash Creek Conservation Association's role as intervenor in a DEP Hearing before a DEP Adjudications Hearing Officer in its continuing effort to protect the Ash Creek tidal estuary in the matter of Permit Application #200402741-JW Stephen B. Toner, Fairfield, Connecticut. The "Ruling on the question of the Commission's authority to regulate use of dock" was published on April 14, 2009.

Gail Robinson, the President of the Ash Creek Conservation Association states, "The Ash Creek tidal estuary is a fragile and important ecosystem because it is one of the few remaining stopover and feeding areas for migratory shorebirds as well serving as a natural shellfish bed for oysters. Allowing docks in this shallow tidal estuary has never made sense because it encourages powerboat traffic which causes damage to mudflats, however the DEP Hearing Officers in the past have maintained that they do not have the authority to consider the environmental impact of the use of a dock only the dock structure itself."

According to the ruling byJean F. Dellamarggio, the Hearing Officer in the Toner dock case, the DEP has the power to not only regulate construction in sensitive ecological areas, but also to regulate the use of these structures.

Gail Robinson, states, "They have at long last recognized that structures are not built for the sake of building them, but for a particular purpose and use, and that this purpose and use may be harmful to the environment and thus should be subject to regulation. The Hearing Officer's decision is well reasoned and well documented and should be easily upheld upon any challenge. It is difficult to overestimate the importance of this decision as a tool for those seeking to impose reasonable protections upon the use of fragile resources."

In her conclusion, Hearing Officer Dellamarggio states, "Statutes must be interpreted in a manner that avoids a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. It is clear that the Commissioner is authorized to regulate the building of a dock and all work associated with that activity. However, to limit the commissioner's regulatory authority to the construction and maintenance of the dock would cause the Commissioner to ignore her responsibilities to protect coastal resources merely because the the harm to such resources may occur by the use of the structure rather than by the the construction and on-going presence of the structure alone."

The hearing officer has not yet ruled on whether the Toner dock can be built, but this preliminary ruling in the case is important as it defines the authority of the commissioner as encompassing the usage and purpose of docks, not just the ecological impact of dock structures. themselves. In many cases it is the powerboats moored at the docks that cause the greatest amount of ecological damage in shallow tidal estuaries as they scour the bottom and create silt that smothers the gills of young oysters and disrupt the feeding and resting patterns of migrating shorebirds.

The Ash Creek Conservation Association is a small grassroots non-profit organization with less than 200 members, which was formed six years ago to protect the Ash Creek tidal estuary, one of the few remaining tidal estuaries in an urban environment. The Ash Creek tidal estuary plays an important role in providing education and recreational opportunities for city residents, who enjoy kayaking or canoeing, walking along the shoreline, artists and photographers who appreciate it's natural beauty, and bird lovers who enjoy the Audubon bird walks.

Shipman & Goodwin, LLC of Stamford and Hartford, Connecticut, a full-service law firm of over 150 attorneys, provided pro bono legal representation for the Ash Creek Conservation Association as part of their ongoing goodwill commitment to assist non-profits and charitable organizations.

More information about the Ash Creek Conservation Association is available at their website at http://www.ashcreekassoc.org or their blog at http://www.blackrockonline.org.

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