PUBLIC OPINION

My name is John Kennedy.

I submit this statement to urge the Westport Conservation Commission (the "Commission") to deny the above-referenced application for 14 Sunny Lane (the "Application").

Over the past several months, numerous experts and concerned residents have appeared before this Commission and presented relevant, material evidence regarding the environmental dangers to wetlands and watercourses-specifically Poplar Plains Brook and Lee's Pond-posed by the septic and surface wastewater discharge systems proposed in the above-referenced application (the "Proposed Wastewater Systems"). I have heard and/or read all of these statements and submissions, including those of Mr. Lombardo, Mr. Harris, Mr. Gramm, Mr. Roseen, Mr. Butler, Mr.Lazo-Wasem, Ms. Ancel, Ms. McGinley, Ms. Goldberg, and Ms. Garten. The overwhelming thrust and weight of all of this body of evidence is that the Proposed Wastewater Systems will have a significant impact or major effect to the detriment of the quality of Poplar Plains Brook and Lee's Pond and that feasible and prudent alternatives do exist which would minimize the impact of the proposed regulated activity. For these reasons I believe the Commission not only can but must deny the Application.

1. Document Submission: Additional Nitrogen-Related Research

I am submitting with this letter, on my own behalf, a bound "Attachment" containing several published scholarly articles on nitrogen loads in New England watersheds and recent research on nitrification and de-nitrification as these processes affect the quality of New England wetlands and watercourses. These articles are submitted to supplement the documentary record related to the various testimony and materials submitted in opposition to the Application on the issue of nitrogen load. None of the articles attached was written in connection with this proceeding or for any of the parties to the proceeding. They are submitted as scientific background for the Commission' consideration.

2. First Principles: The Commission's Public Trust and its Duty to Protect Wetlands and Watercourses.

Job number one in this proceeding for all participants is to assist the Commission in carrying out its primary statutory function: protection and preservation of wetlands and watercourses in Westport. This is not a job that can be done by anyone in Hartford or Washington, D.C; it is the Commission's job, and you Commissioners are the first stop and the backstop on this matter for Westporters now and in the future.

I urge the Commissioners to re-familiarize themselves with Section 1.4 of the Westport IWW Regulations. In particular I urge the Commissioners to review Section 1.4(a) through (h). These clauses explain that the Commission's purpose is: to minimize disturbance and pollution of wetlands and watercourses, maintain or improve water quality, prevent damage from erosion and turbidity, prevent the loss of fish and other beneficial organisms, wildlife and vegetation, and prevent the destruction of natural habitats. These are the first principles of the Commission by State law. These principles apply no less when an application is politically sensitive or when the applicant has a prominent local board of directors.

The job of the Commission is not to find a way-someway, somehow-to approve this Application in order to resolve a local political dispute. The job of the Commission is to carry out its statutory purposes. Local IWW commissions have substantial powers for a good reason: they are intended to the primary legal means to protect the quality of local wetlands and watercourses. I urge the Commission to seek advice on its full legal powers in this matter and to reject any suggestion that the Commission must rescue a defective application or resolve a local political dispute over where Westport should have sewers. Those are not the statutory purposes of the Commission and to issue a decision based on those concerns, or reflecting those influences, would in my view be in disregard of the IWW statute and constitute reversible error.

2. The Record on this Application Cannot Support a Finding of 'No Significant Impact' on Wetlands and Watercourses.

The present Application as filed cannot be approved under the Commission's standards of review. I refer again to the factual expert and non-expert evidence in the record of this Application, which overwhelmingly supports denial of the Application.

The Commission's criteria and standards of review are set out in Sections 5 and 6 of the Commission's regulations (the "Westport IWW Regulations"). The criteria include water quality, erosion and sediment, natural habitats, discharge and runoff, and recreational and public uses. As to each factor, the Commission must "determine that an activity will not have significant impact or major effect on the general character of wetlands and watercourses." The Commission must find, for example, that the activity proposed in the Application will

• Minimize the disturbance and pollution of wetlands and watercourses (Section 6.1(a));
• Limit the dimensions of structures proposed to the minimum necessary to accomplish the intended function (Section 6.1(b));
• Prevent the loss of fish and other beneficial organisms, wildlife and vegetation (Section 6.1(c); and
• Maintain the conservation qualities of affected wetlands and watercourses (Section 6.1(e).

3. The Commission Should Disregard Certain Spurious Issues Raised by Witnesses for the Applicant During the Hearing.

The Commission's criteria are broad, but they do not include everything under the sun. Because this application is charged with local politics, I remind the Commission of some factors that the Commission need not-and should not-consider in deciding this Application. I mention the issues below because each has been raised in this hearing, either directly or by innuendo, by various speakers on behalf of the Applicant:

• False Issue #1: The Y deserves some type of special consideration, or enjoys some special legal status in this Application, because it is a not-for-profit corporation. As one Y Board member put it, "we're not a battery manufacturer from Duluth."
  • There is nothing in the applicable law that confers on the Y some special status or entitles the Y to special consideration, to a relaxed standard of review, to a different set of rules, or to any other exceptions or legal or procedural "breaks." Increased nitrogen loading in Poplar Plains Brook or Lee's Pond is no less harmful because it originates in a bathroom owned by a tax-exempt organization.
• False Issue #2: The Board of Directors of the Y decided to sell its downtown building before securing the necessary approvals for the proposed Mahackeno facility and now, in a worst case scenario, the Y might have to leave town.
  • Whether or not the Y's Board of Directors has made a significant mistake has nothing whatsoever to do with the merits of the application before you or with the standard of review the Commission must apply.
• False Issue #3: A member of the Y's Board of Directors has suggested that if the application is not approved, the Y may sell the land to a developer of affordable housing.
  • Again, whether or not this is an appropriate argument for the Y to make anywhere, it is irrelevant in this proceeding. Equally irrelevant is the implicit threat that the Board of Directors of the Y will vote to sue Westport if this application is not granted. Litigation is one type of long-term risk for any town that handles decisions such as these, but so is long-term damage to wetlands and watercourses. The latter is what the Commission must address, not the former.
• False Issue #4: The Water Wrats team members and their parents want their Olympic-sized swimming pool at Mahackeno.
  • This hearing is not a referendum on whether the Y's swim team can have a new pool. This hearing is only about whether the application that the Y management and Board of Directors submitted to the Commission for this site can be approved under the Commission's regulations.
• False Issue #5: The Y owns the Mahackeno property so it can do whatever it wants there.
  • The very fact that there is a Conservation Commission, an IWW statute, a Department of Environmental Protection, and other state and local laws relating to land use is sufficient to put this nonsensical argument to rest.

Denial of the Application is not only warranted but required in this case. Section 221-41(b) of the IWW statute requires denial of an application for which a public hearing is held, unless the Commission finds that no feasible or prudent alternative exists for the proposed activity. The Commission's rules contain the same requirement in Section 11.1.

This point is worth repeating. In this case, the Commission, by law, may not issue a permit unless it has found on the basis of the record that a feasible and prudent alternative does not exist. Put differently, the applicant must demonstrate that its Proposed Wastewater System is the one and only feasible and prudent alternative that exists for the proposed activity. But the Y's Application completely fails to demonstrate anything of the kind. The record here in fact points to multiple feasible and prudent alternatives and the existence of these feasible and prudent alternatives has not been disproved.

• a. There are multiple "feasible" and "prudent" alternatives to the proposed regulated activity.

"Prudent" means economically and otherwise reasonable in light of the social benefits to be derived from the proposed regulated activity." While cost may be a consideration in deciding what is "prudent", a "mere showing of expenses will not necessarily mean that an alternative is imprudent." In non-legalese, this means that an alternative may be "prudent" under the law even if it costs the applicant more money. For a construction project that the Y itself has estimated at $42 million, the additional expense of 10's or 100's of thousands of dollars, or even a million dollars or two, to meet environmental requirements, cannot be characterized as "imprudent."

So what are these feasible and prudent alternatives and who has to come up with them? First, it is the applicant's job to identify any alternatives and to prove to the Commission why none of these is either feasible or prudent. That has not been done on this record. Numerous specific alternatives have been suggested by other speakers in this hearing. I refer you to their individual statements and written submissions referenced above. These alternatives include, but are not limited to the following:

• (a) modifying, upgrading and enhancing the proposed septic system technology in order to assure minimal pollution by system effluents, including nitrogen, phosphorous, and PCCPs;
• (b) expanding and improving the surface wastewater treatment measures to minimize the dangers, again, of pollutant runoff affecting Poplar Plains Brook and Lee's Pond;
• (c) reducing the size and/or changing aspects of the siting of the proposed facility to minimize encroachment on wetlands and wildlife habitat-in particular the Eastern Box Turtle--and pollution and damage to water quality as a result of runoff and septic discharges;
• (d) locating the project in another location in Town where the risk of harm to wetlands and watercourses is lower. This latter alternative would not deprive the Y of receiving continued economic value for its property at Mahackeno, so there would be no valid 'takings' argument against the Town. In any event, the job of the Commission is not to make decisions about what is or is not a taking; its job is to decide applications on the facts under its regulations.

• b. In denying the Application under Section 11.1 of its Regulations, the Commission is not obligated to provide the applicant with a detailed road-map of how to implement any "feasible" and "prudent" alternatives, or otherwise to re-write the Application.

• c. There is Substantial Evidence in the Record to Sustain any Appeal of a Denial of this Application.

On appeal, the party appealing from a denial by the Commission has the burden of proof that there was no substantial evidence in the record to support the Commission's decision. A denial of the Application by the Commission must be sustained on appeal if any one of the reasons cited in the decision for denial is supported by substantial evidence. This rule is otherwise known as the "substantial evidence rule." In practical terms this means that a court may not substitute its judgment for the Commission's judgment as long as the decision is reasonably supported by the record.

In this proceeding, there is substantial evidence that the proposed regulated activity will have a substantial adverse effect upon Poplar Plains Brook and Lee's Pond. This evidence has been provided in written submissions and oral testimony by a number of expert witnesses and by multiple witnesses from the general public, as noted above.

5. The "Purview" Non-Issue

Counsel for the Applicant has suggested that the Commission's jurisdiction over the Application is limited because the State Department of Environmental Protection ("DEP") has the authority to issue a septic discharge permit for the Applicant's proposed onsite wastewater management system. The suggestion is that if the DEP issues a septic discharge permit, the Commission's authority is preempted with respect to its evaluation of the proposed septic system and its effect on wetlands and watercourses.

This assertion is flatly incorrect and flies in the face of more than 25 years of established Connecticut law on the question, beginning with the case of Aaron v. Conservation Commission. A recent decision of the Connecticut Supreme Court affirms and explains the basic rule that an Inland Wetlands agency may exercise concurrent jurisdiction with the State over DEP-regulated septic systems: As we stated in Aaron, where we upheld the ability of an inland wetlands commission to regulate septic systems and subsurface sewage disposal systems, the act 'seeks not only to protect the state's inland wetlands and watercourses from pollution, but also to preserve their very existence and protect them from any disturbance, whether polluting or not, which could affect their conservation, economic, aesthetic, recreational or other values. This rule makes eminent sense, as it will fall to the Town of Westport, not to the State of Connecticut, if failures of the proposed septic system and wastewater management result in pollution of Lee's Pond or other sections of the Saugatuck River. Therefore, the Commission not only has the legal authority, it has a moral obligation as a trustee of Westport's watercourses, to deny the Application, including denial based upon the impact of the proposed septic and wastewater facilities on wetlands and watercourses, regardless of the issuance of a DEP septic discharge permit.

For all of the foregoing reasons, and for the reasons addressed in other statements in opposition to the Application cited in this letter, I urge the Commission to deny the Application.

Respectfully submitted,

John B. Kennedy