EASTON CONSERVATION COMMISSION INLAND WETLANDS AND WATERCOURSES AGENCY Saddle Ridge Village Application No: 11-404

Public Hearings held: April 26, 2011; May 10, 2011; May 24, 2011; and June 13, 2011 Applicant: Property Owner: Saddle Ridge Developers Silver Sport Associates, Marolyn Stone c/o Huntley Stone 68 Soundview Drive Easton, CT 06612 Matthew Ranelli, Esq. Shipman & Goodwin One Constitution Plaza Hartford, CT 06103-1919 Milone & MacBroom, Inc. 99 Realty Drive Cheshire, CT 06410

Applicants Counsel:

Applicants Engineers:

I.

The Application The Applicant has entitled his application as follows: Determination of No Regulated Activity Or, In The Alternative, Request for Amendment of Existing Permit to Conduct Regulated Activities of Saddle Ridge Developers for Property Located at Sport Hill Road, Silver Hill Road, Cedar Hill Road, Westport Road (Route 136), and 5 Silver Hill Road (hereafter called the Application). The purpose of the Application is to create a mixed income housing community of 99 townhouses on 124.704 acres on the above referenced property. The Inland Wetlands Commission and the Easton Conservation Commission, acting jointly, are herein referred to as Conservation Commission or Commission. The following party intervened pursuant to Connecticut General Statutes Coalition to Save Easton c/o Mr. Chris Miles and Ms. Leslie Minasi 210 Silver Hill Road P.O. Box 151 Easton, CT 06612 22a-19:

II.

Plans Reviewed A. The Commission retained the engineering firm GHD, which issued a report dated May 10, 2011 including appendices to its Saddle Ridge Review, Further Review of Septic Impacts dated May 17, 2011, Response to Applicants Comments during hearing dated May 24, 2011, and memorandum of Final Overview `dated June 13, 2011. The Applicant retained the following consultants who also issued reports: Milone & MacBroom, Inc., reports dated March 4, 2011, May 20, 2011, May 24, 2011, and June 9, 2011; Soil Science and Environmental Services, Inc., reports dated July 2, 2010 and May 23, 2011; and various response letters from Milone & MacBroom. The Intervenor retained the following consultants who also issued reports: Environmental Planning Services (Michael S. Klein), reports dated December 1, 2010, May 8, 2011 and May 24, 2011; Trinkaus Engineering (Steven D. Trinkaus), reports dated October 22, 2010, November 4, 2010, December 3, 2010, May 8, 2011, and May 23, 2011; Catalyst Environmental Consulting Inc, report dated November 8, 2010.

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III.

Past Application The application for development of this property, made by the same Applicants in 2008, was for a subdivision of 21 lots for 21 single-family dwellings, each lot comprising three or more acres, plus a 14-acre parcel reserved for the existing horse farm (Application #08-367). This plan was approved with numerous conditions by the Commission on January 21, 2009, and the approved plan was duly recorded with the Town Clerk of Easton on June 16, 2010. The current Application No. 11-404 is the second application for a mixed-income housing community at this Site and it is for 99 townhouses. The prior application for a mixed-income housing community at this Site was for 105 townhouses. The Applicant claims that this current permit request for 99 townhouses is an amendment to the existing 21 lot subdivision permit with no new regulated activities proposed and requested approval on that basis.

IV.

Description of the Property: The property (hereafter called the Site) is a 124.704 acre tract in north central Easton, bounded by Sport Hill Road, Silver Hill Road, Cedar Hill Road, Westport Road, and 5 Silver Hill Road. Silver Hill Road and Cedar Hill Road are Town designated, Scenic Roads pursuant to Town Ordinance under General Statutes 7-149a. 28.2 acres (22.6%) of the Site is defined as wetlands.

The terrain of the Site consists of irregular topography divided by a major belt of wetlands which extends from its northwest corner to its southeast corner. There are several smaller wetlands. A 1,000-foot long pond along Sport Hill Road, in the southeast portion of the Site, is about six acres and is part of the FEMA 100 year flood zone. There are several nearby rocky outcrops, and over twenty different soil types have been identified on the Site. Although once actively farmed in open meadows and two orchards, the Site is now predominantly second-growth woodland, adjacent to which is an open area of about 14 acres containing buildings and paddocks of the owners horse farm. The entire acreage of the Site lies in the watersheds of two nearby public water supply reservoirs owned by the Aquarion Water Company. The easterly portion of the Site drains via Patterson Brook to the Easton Lake Reservoir about 1.4 miles to the east, and the remainder of the Site drains via Ballwall Brook to the Aspetuck Reservoir, which is about two miles to the west. V. The Easton Regulations A. 1. The Inland Wetlands and Watercourses Regulations of the Town of Easton (hereafter called Regulations), effective August 28, 2007, provide the standards for the Commission. The Regulations begin as follows: 1.1 The inland wetlands and watercourses of the State of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed. The wetlands and watercourses are an interrelated web of nature essential to an adequate supply of surface and underground water; to hydrological stability and control of flooding and erosion; to the recharging and purification of groundwater; and to the existence of many forms of animal, aquatic and plant life. Many inland wetlands and watercourses have been destroyed or are in danger of destruction because of unregulated use by reason of the deposition, filling or removal of material, the diversion or obstruction of water flow, the erection of structures and other uses, all of which have despoiled, polluted, and eliminated wetlands and watercourses. Such unregulated activity has had, and will continue to have, a significant, adverse impact on the environment and ecology of the State of Connecticut and has and will continue to imperil the quality of the environment, thus adversely affecting the ecological, scenic, historic, and recreational values and benefits of the state for its citizens now and forevermore. The preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare, and safety of the citizens of the state. It is, therefore, the purpose of these regulations to protect the citizens of the state by making provisions for the protection, preservation, maintenance, and use of the inland wetlands and watercourses by minimizing their disturbance and pollution; maintaining

4 and improving water quality in accordance with the highest standards set by federal, state, or local authority; preventing damage from erosion, turbidity, or siltation; preventing loss of fish and other beneficial aquatic organisms, wildlife, and vegetation and the destruction of the natural habitats thereof; deterring and inhibiting the danger of flood and pollution; protecting the quality of wetlands and watercourses for their conservation, economic, aesthetic, recreational and other public and private uses and values; and protecting the states potable fresh water supplies from the dangers of drought, overdraft, pollution, misuse and mismanagement by providing an orderly process to balance the need for economic growth of the state and the use of its land with the need to protect its environment and ecology in order to forever guarantee to the people of the state, the safety of such natural resources for their benefit and enjoyment and for the benefit and enjoyment of generations yet unborn. B. The Regulations define significant impact as follows: any activity, including but not limited to, the following activities which may have a major effect: 1. Any activity involving deposition or removal of material which will or may have a substantial effect on the wetland or watercourse or on wetlands or watercourses outside the area for which the activity is proposed. Any activity which substantially changes the natural channel or may inhibit the natural dynamics of a watercourse system. Any activity which substantially diminishes the natural capacity of an inland wetland or watercourse to: support aquatic, plant, or animal life and habitats; prevent flooding; supply water; assimilate waste; facilitate drainage; provide recreation or open space; or perform other functions. Any activity which is likely to cause or has the potential to cause substantial turbidity, siltation, or sedimentation in a wetland or watercourse. Any activity which causes substantial diminution of flow of a natural watercourse or groundwater levels of the wetland or watercourse. Any activity which is likely to cause or has the potential to cause pollution of a wetland or watercourse. Any activity which damages or destroys unique wetland or watercourse areas or such areas having demonstrable scientific or educational value.

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5 C. The Regulations define Regulated Activities (Section 2.1) as follows: Regulated Activity means any operation [within] or use of a wetland or watercourse involving discharge of water, removal or deposition of material, or any obstruction, construction, alteration, or pollution of such wetlands or watercourses, and any earth moving, removal, deposition, construction, or clearcutting of trees within one hundred (100) feet from the point on the boundary of any wetlands or watercourses and two hundred (200) feet from the Aspetuck River, Mill River, Saugatuck Reservoir, Aspetuck Reservoir, Hemlock Reservoir, Easton Lake Reservoir or Pfeiffer Pond, and ponds having an area in excess of three (3) acres, but shall not include the activities specified in Section 4 of these regulations. (Emphasis added by Commission) D. Regulated Areas: DEP in its letter of June 30, 1997 states that for purposes of the Guidelines (Upland Review Regulations, Connecticuts Inland Wetlands and Watercourses Act, Appendix C to the Regulations) the States Regulations define non-wetland or non-watercourse areas in which certain types of activities would be regulated by municipalities as Upland Review Areas. This term is synonymous with Regulated Areas. The highlighted portion (set forth above in C) of the definition of Regulated Activity in the Regulations repeats a section of the definition from Conn. Gen. Stat. Sec. 22a-38(13), which also defines Regulated Activity a s meaning any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses(Emphasis added by Commission) The Regulations outline the documents to be considered. (Section 10.1) In addition to the Application and supporting documents for the Applicant, along with the Commissions designated expert, the Commission may also consider comments from organizations which may be affected by the proposed activity. The Commission did receive letters from the Aquarion Water Company, dated March 24, 2011; the Department of Public Health, dated March 11 through June 9, 2010; and the Connecticut Fund for the Environment, dated May 16, 2011. The Regulations outline the standards and criteria for the Commissions decision. The criteria include the following: 10.2 Standards and Criteria for Decision. The Agency shall consider relevant facts and circumstances in making its decision on any application for a permit, including but not limited to the following: a. The environmental impact of the proposed action, including the effects on the inland wetlands and watercourses capacity to support fish and wildlife, to prevent flooding, to supply and protect

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6 surface and ground water, to control sediment, to facilitate drainage, to control pollution, to support recreational activities, and to promote public health and safety. b. The alternatives to the proposed action including a consideration of alternatives which might enhance environmental quality or have a less detrimental effect, and which could feasibly attain the basic objectives of the activity proposed in the application. The relationship between the short-term uses of the environment and the maintenance and enhancement of long-term productivity, including consideration of the extent to which the proposed activity involves trade-offs between short-term environmental gains at the expense of long-term losses or vice-versa, and consideration of the extent to which the proposed action forecloses or predetermines future options. Irreversible and irretrievable commitments of resources, which would be involved in the proposed activity. This requires recognition that the inland wetlands and watercourses of the State of Connecticut are an indispensable, irreplaceable and fragile natural resource, and that these areas may be irreversibly be destroyed by deposition, filling, and removal of material, by the diversion, diminution or obstruction of water flow including low flows, and by the erection of structures and other uses. The character and degree of injury to, or interference with, safety, health, or the reasonable use of property, including abutting or downstream property, which would be caused or threatened by the proposed activity, or the creation of conditions which may do so. This includes recognition of potential damage from erosion, turbidity, or siltation, loss of fish or wildlife and their habitat, loss of unique habitat having demonstrable natural, scientific or educational value, loss or diminution of beneficial aquatic organisms and wetland plants, the dangers of flooding and pollution, and the destruction of the economic, aesthetic, recreational and other public and private uses and value of wetlands and watercourses to the community. The suitability of the activity of the area for which it is proposed. This requires a balancing of the need for the economic growth of the state and the use of its land, with the need to protect its environment and ecology for the people of the state and the benefit of generations yet unborn.

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7 g. Measures which would mitigate the impact of any aspect of the proposed regulated activity(ies). Such measure[s] include, but are not limited to, actions which would avoid adverse impacts or lessen to wetlands and watercourses and which could be feasibly carried out by the Applicant and would protect the wetlands or watercourses natural capacity to support fish and wildlife, prevent flooding, support water, control sedimentation, prevent erosion, assimilate wastes, facilitate drainage, and to provide recreation and open space.

H.

Regulation regarding feasible and prudent alternatives: The Regulations (Section 10.3) provide that a permit shall not be issued unless the Commission finds that a feasible and prudent alternative does not exist, as set forth below: 10.3 In the case of any application, which received a public hearing, a permit shall not be issued unless the Agency finds that a feasible and prudent alternative does not exist. In making this finding, the Agency shall consider the facts and circumstances set forth in Section 10 of these regulations. This finding and the reasons therefore shall be stated on the record in the decision of the Agency.

I.

Regulated Activity/Jurisdiction: As noted above, the Regulations define regulated activity (Section 2, definitions) as any operation within or use of a wetland or watercourse involving discharge of water, removal or deposition of material, or any obstruction, construction, alteration or pollution of such wetlands or watercourse, and any earth moving, removal, deposition, construction, or clear cutting of trees within one hundred (100) feet from the point on the boundary of any wetlands or watercourses (Emphasis added by Commission) Further Jurisdiction: In addition, the Regulations (Appendix C), incorporating the Guidelines (for the) Upland Review Area Regulations, state the following, providing further jurisdiction for the Commission: While requiring a permit for specified activities within defined upland review area boundaries, these wetland agencies still maintain their authority to regulate proposed activities located in more distant upland areas if they find that the activities are likely to impact or affect a wetland or watercourse. (Emphasis in Appendix C)

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VI.

Findings The Commission finds that the proposed Application includes regulated activities which are likely to cause a significant impact and adverse effect upon the wetlands and watercourses. As set forth below, a number of these regulated activities are occurring within the one hundred (100) feet upland review area. In many important respects, as discussed below, the proposed development involves operations which use the wetlands for discharge (stormwater, nitrogen), runoff, pollutants, and stormwater

8 control, thus directly implicating this Commissions jurisdiction pursuant to the Regulations (Section 2.1) and Connecticut General Statutes Section 22a-38(13). A. The Commission makes the following specific findings regarding density: 1. As noted in the GHD report of May 10, 2011 [Page 2]: Overly dense development or destruction of resources on the property, but outside of the upland review area, can impact the down-gradient wetland. The wetlands and buffer zones in turn provide filtrations of runoff, groundwater recharge, flood storage, along with specialized plant species and wildlife habitats. Impacts to these wetlands via overly dense and improper development upgradient can result in significant adverse impacts to the reservoir and to drinking water qualitysomething absolutely vital to the health and well being of hundreds of thousands of people. The Commission finds that the overall density of this project violates state land use policies which recommend a density of one residence in two acres of property in public drinking water watersheds. The Commission finds that the subject property drains to two different drinking water reservoirs owned by Aquarion (Aspetuck to the west and Easton to the east) that serve several hundred thousand people, and the Aquarion Water Company, the Greater Bridgeport Regional Planning Agency, the State of Connecticut Department of Public Health along with the Rivers Alliance of Connecticut and other interested groups expressed concerns with the density of this proposed project. [GHD, May 10, 2011, Page 3] The Commission finds that evidence in the record from outside agencies and entities recommend against this project based upon overly dense use in the public drinking water watershed, which will cause a direct significant and adverse effect upon the wetlands. Specifically, reports received from Aquarion Water Company and the State of Connecticut Department of Public Health consistently state that residential development density within a watershed should not exceed 1 dwelling unit per 2 acres of buildable area. The 9 lots proposed for multi-family housing encompass an area of 81.313 acres exclusive of wetlands, which yields a proposed density of 1 unit per 0.82 acres. This is 2.4 times denser than the maximum density the DEP determined would protect public drinking water supplies. Even including the Open Space, the density of the multi-family housing would be substantially greater than the maximum recommended. [Michael Klein letter, May 8, 2011, Page 3] (Emphasis added by Commission) The Commission finds that there is significant support from the above entities as well as the State of Connecticut Department of Environmental Protection to enforce a watershed protection area restricting residential development density to no more than one dwelling unit per two acres of

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9 buildable area. Specifically, per the GHD report, some of the technical information for this originates from the State of Connecticut Department of Environmental Protection, Water Compliance Unit May 1989 Report for the Blue Ribbon Commission on Housing, on the Land Required to Support Residential Development in Connecticut. This report was a thoughtful and heavily researched document that discusses criteria for land development that will minimize degradation considering their analysis of pollutant impacts, septic system reliability, availability of potable water, storm water runoff, short and long term construction impacts, and the availability of regulatory resources to ensure that environmental and health standards are met. [GHD report, May 10, 2011, Page 3] Further, as noted in the GHD report, the DEP findings are as follows: After a careful review of the literature on this subject, and utilization of the analytical techniques developed by the Department, the following densities or lot sizes are recommended for various natural resource conditions: Minimum lot area in public water supply watershed (with or without public water); 1 unit/2 acres (exclusive of wetlands). [GHD May 10, 2011, Page 4] (Emphasis added by Commission) 5. The Commission finds that the Conservation and Development Policies Plan for Connecticut 2005-2010 [C & D Plan] states the following in further support of this density limitation in watershed areas: the Plan states as one of its fundamental principles that all Connecticut municipalities must strive to protect and ensure the integrity of environmental assets critical to public health and safety, and lists drinking water supplies and water quality as principal among these critical assets. The C&D Plan specifically states that the principles of conserving and protecting the quality of our finite water resources must be integrated into all planning activities and that sources of drinking water must be continuously protected from intensive development because the cumulative impacts of continuing development on both existing and future water supply watersheds can result in deterioration of water quality. Accordingly, the C&D Plan recommends that Connecticuts towns require a minimum lot size of one dwelling unit per two acres of buildable area in all public supply reservoir watershed areas. [GHD report, May 10, 2011, Page 4]. (Emphasis added by Commission) Further, in balancing economic growth with protection of the environment and watershed lands, the C & D Plan recognizes that different regions provide different resources/elements/functions to the well-being of the state and its people. In the Introduction and Overview, Page 5, it states: Areas that have intrinsic qualities, perform useful natural functions, or

10 have existing or value for significant public use need to be protected from degradation or inappropriate development." On Page 7, under "Conservation Area Policies," Item #4 outlines the critical role of watershed lands in protecting reservoirs and "ensuring a clean and safe drinking water supply." Further, the Plan points to the fact that protection of natural systems and a healthy and adequate drinking water supply are not only essential to public health, but also to continued economic growth. [Growth Principle #5, Pages 79-80] 6. The Commission finds that further support for this density limitation is stated in a publication called Carrying Capacity of Public Water Supply Watershed: A Literature Review of Impacts on Water from Residential Development [March, 1990], which states as follows: Page 2: it is important that the cumulative impact of residential development on water quality be considered in establishing minimum lot sizes in public water supply watershed. Based on a review of the literature it appears that maximum development density of 1 dwelling per 2 acres will provide adequate protection of water quality as long as proper watershed development control measures are utilized. Page 4: Of the three categories of control measures, (vegetative, non-structural, and structural) greater emphasis needs to be placed on the use and timely application of vegetative and non-structural measures for both short and long term soil stabilization Page 5: Other non-point source pollutants of concern include fertilizers, pesticides, fuel-oil storage tanks, household hazardous wastes, construction materials, agricultural practices, and silviculture practices. Fertilizers have been identified as a source of phosphorus inputs to lakes and reservoirs and phosphorus is one of the driving forces of eutrophication in Connecticut. Research indicates that 5 to 10 times as much phosphorus will be exported from residential watersheds as from forested watershed [GHD report, May 10, 2011]. 7. The Commission finds that protection of the wetlands and protection of the drinking water watershed are inextricably linked, as set forth by GHD [GHD report, May 10, 2011, Page 5]. The report states the following: The Conservation Commission, like Eastons Planning and Zoning Commission, has an interest in protecting the watershed feeding the reservoirs, as well as the more traditional role of evaluating the impacts of wetlands between the development and the reservoirs because of the direct link between the two. These wetlands serve a vital function of protecting drinking water watersheds and thus the entire development

11 area, not just the 100 upland review area, should be considered here (and in all areas in Easton within the Drinking Water Watersheds) because of the potential not just for wetland impacts via drainage systems but also due to the significant degradation of vegetative conditions and loss of natural resource connectivity within the existing propertysomething much better retained in the previously approved application. The increase in density of the current plan has a direct correlation to the potential for pollutant loading within the adjacent wetlands by the relationship: Pollutant loading = f (area x land cover x rainfall x impervious surfaces) + other factors such as septic systems and general use of property. Thus, the greater the impact on land cover and the more impervious surfaces and other impacts, the greater the challenge to collect and treat the runoff, the greater the importance in this case on the stormwater detention and treatment basins, and also the greater the risk to all down gradient resources. 8. The Commission finds that Aquarion, in its letter of March 24, 2011, stated that the site of this proposed development is wholly within the watersheds of two of Aquarion's public drinking water supply reservoirs, Easton Lake Reservoir and Aspetuck Reservoir. Further, the letter states that a fundamental principle of drinking water supply source protection is to limit the density of residential development within public water supply watershed areas to no more than one dwelling unit per two acres of buildable area. This watershed protection maxim is clearly stated in the Conservation and Development Policies Plan for Connecticut 2005-2010, as developed by the Office of Policy and Management, and has been repeatedly echoed and reaffirmed by the Connecticut Department of Public Health, the Connecticut Department of Environmental Protection, and the Regional Planning Agency Association of Connecticut. The development of this sensitive public drinking water supply area at over twice the maximum recommended development density remains an inappropriate and unacceptable development plan for this location. The consistently high quality water from Easton wetlands and watercourses is largely due to the Town's limited development and large-lot residential zoning. Aquarion urges the Town to consider that while the Applicants for any one high density development proposal may claim that their particular project will have no measurable effect to the quality of the public drinking water supply, this proposal, if approved, could set the stage for an increased level of development in

12 Easton that would cumulatively prove to be detrimental to water quality within critical public drinking water supply watershed areas. Because the development density of this revised proposal still conflicts with fundamental principles of watershed protection and remains, consequently, contrary to the recommendations of the Connecticut Department of Public Health, the Connecticut Department of Environmental Protection, the Connecticut Office of Policy and Management and the Regional Planning Agency Association of Connecticut, the Aquarion Water Company Department of Watershed and Environmental Management strongly urges the Town of Easton not to approve this application. (Emphasis added by Commission) 9. The Commission finds that the Connecticut Fund for the Environment (CFE) in its letter dated May 16, 2011 stated that the property lies within the public water supply watershed of the Aspetuck and Easton Lake Reservoirs. CFE notes that the Application proposes the construction of 99 housing units on the site at a gross density of 1 unit per 1.12 acres, while the C & D Plan calls for a maximum density of 1 unit per 2 buildable acres for residential development in drinking water watersheds. A high density development within the watershed property would set an extremely harmful precedent for watershed development not only in Easton but also throughout the states. CFE urges denial of this Application. The Commission finds that the Department of Public Health in its review of the septic plans of each of the 9 lots, dating from March 22, 2010 through June 9, 2010, confirmed that the Drinking Water Section within the Department of Public Health also reviewed the Application so as to conform with the requirements of the C & D Plan. The Drinking Water Section points out that the proposed density of development for this application exceeds the density guidelines for development within a public water supply watershed. The Commission finds that regulated activities in a watershed area are emphasized by a notice requirement in Conn. Gen. Stat. 22a-42f. The Commission finds that the evidence in the record is substantial to conclude that the overall density in the drinking water watershed area poses a direct, significant adverse effect to the wetlands.

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13 B. The Commission makes the following specific findings regarding the septic systems: 1. The Commission finds that the abundance of individual septic systems creates significant adverse effects upon the wetlands and watershed as follows: What is of real importance to the wetlands and watersheds are the impacts from the septic system discharges, which is something more intensely reviewed under the jurisdiction of the DEP than the local health department and state DPH. It is the DEP guidance and review jurisdiction as explained below that addresses this, and in particular the amount of nitrogen being discharged to the environmentally sensitive areas from the septic systems (as well as other pollutants such as phosphorus; bacteria, protozoa and viruses; synthetic organic chemicals; and heavy metals). The concentration of nitrogen discharges from the 99 units and their associated 99 septic systems is of particular concern regarding environmental health and subsequent public health impacts from nitrogen discharged to wetlands in a water supply watershed. Based on the configuration of the proposed 99 individual septic systems, essentially all wetland areas on the property will receive continuous and consistent daily nitrogen discharges (and other pollutant discharges) via groundwater transmission from the new septic systems. This continuous and consistent daily discharge of nitrogen and other pollutants to wetlands via groundwater transmission does not currently exist on this property and the impacts of introducing these pollutants to wetlands could have significant detrimental effects on the quality of the wetlands and the subsequent water supply reservoirs the wetlands feed into. [GHD letter dated May 10, 2011, Page 6] (Emphasis added by Commission) GHD points out in its May 17, 2011 letter, Page 1, that nitrogen minimally degrades as follows: The total amount of nitrogen discharged, like a number of contaminants, is conserved in the ground, that is, once it is discharged from a septic tank it is not treated or removed to any great extent, it simply gets diluted by ground water and rain thus the total amount of pounds of nitrogen discharged per day remains constant and the full amount of nitrogen (total pounds) can enter a down gradient wetland and reservoir. The seriousness of this fact is stated on Page 8 of its report dated May 10, 2011, where it points out that the only two nitrogen values given were quite high as follows: The Applicant states they modeled the system using DEP criteria and the results are 9.5 mg/l of Nitrogen leaving the property in the Easton Reservoir watershed and 6.3 mg/l in the Aspetuck. Both numbers are significant but the Easton Reservoir is attention getting. DEP regulations demand no more than 10 mg/l total nitrogen [at a point of concern including wetland boundaries]. The Applicants number is very close to that limit; hence the proposal

14 deserves even more to undergo the strict scrutiny of DEP using DEP protocols, safety factors, models and review. We cannot be comfortable with this situation 2. The Commission has considered and rejected the Applicants argument that in essence he was forced to install 99 individual septic systems due to a Town of Easton ordinance forbidding community or engineered septic systems. The Applicant chose to create this high-density development and this particular high-density configuration on his own, while he had feasible and prudent alternatives to the proposed 99-unit development, as discussed below. The Commission finds that a project of this size, which produces more than 5,000 gallons of sewage per day, laid out in a high-density manner, in close proximity to the wetlands, poses a threat to the public drinking water supply. The GHD report of May 10, 2011, Page 8 states the following: The proposed development in total will have a discharge of greater than 5000 gallons per day (gpd) and in fact is likely to be more than 15,000 gpd average usage, and should thus fall under the DEP review and oversight, not just to the local health department and the state DPH. The application is for 105 [now 99] units as a whole. Yet the Applicant carved out 9 separate lots as what we view as a contrived means to circumvent the DEP regulation and oversight by what would in effect reduce the onsite wastewater discharge on each of the 9 lots to below 5000 gpd, thereby keeping the project out of the DEPs jurisdiction. The DEP criterion incorporates an in-depth analysis and review of septic system design per standards and criteria which have been incorporated into their on-site system design guidance documents. (Emphasis added by Commission) 4. The Commission makes the following specific findings regarding the nitrogen loading of 99 septic systems: a. The Commission finds that the cumulative effect of nitrogen loading from 99 septic systems was not adequately addressed. The response from the Applicant [MM May 24, 2011 Chapter 2, Page 3] was, The reviewer (1) misunderstands both the jurisdiction of the DEP and DPH and the protection provided by the Connecticut Public Health Code and (2) ignores the Town of Easton Ordinance that prohibits community systems or other septic treatment systems under the DEPs jurisdiction. Yet, GHD notes (May 10, 2011, Page 9) that although the Applicant asserts that they do not have to follow DEP guidelines

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15 for pollutant analysis from wastewater discharges, in their November 22, 2010 supplemental materials report (Page 9, Item R3) they have presented nitrogen data while claiming to have analyzed the site in compliance with DEP criteria, but have not provided the details of the analysis. GHD goes on to note It appears that the Applicant has only analyzed the anticipated nitrogen concentrations from wastewater discharges at 2 (unknown) locations and apparently at property lines rather than at wetland boundaries since only two nitrogen values have been provided. Therefore, it is our professional opinion that the Applicant has inaccurately represented that the Application is compliant with DEP nitrogen criteria from onsite wastewater discharges which clearly has not been proven. There is a clear concern that Nitrogen will be exceeded because the limited data provided by the Applicant shows values near the limit, presumably at points farther down gradient. (Emphasis added by Commission) Regardless of the jurisdictional debate, it is clear to the Commission based upon the evidence in the record that the concerns raised by GHD and the Intervenors consultants relative to the attenuation of the nitrogen and the cumulative effect of 99 septic systems have not been answered. Adequate analyses were not conducted on the additive effects of 99 individual septic systems on the adjacent wetlands and watersheds. With regard to the septic systems, the Commission concludes that the current Application for 99 housing units, each with its individual septic systems, creates significant adverse effects upon the wetlands and watershed. C. The Commission makes the following specific findings regarding this Application for 99 residences vs. the prior 21 lot subdivision: 1. The January 21, 2009 letter of approval sent from the Easton Conservation Commission to Huntley Stone of Silver Sport Associates states in Point #3, "This permit is based on the wetland impacts of 21 single family housing units. No other use was considered." Contrary to the Applicant's desire to portray this permit as an approval covering solely regulated activities, the wording is clear in specifying that the approval was for the impacts of 21 housing units. During deliberations, the Commission, according to its regulations (Section 10.2.c), must consider long term as well as short term impacts of any proposal. The 2009 approval for 21 lots is separate and distinct from the current Application for 99 housing units. 2. The Commission finds that there are fundamental differences between the previously approved 21-lot subdivision and the proposed 99-unit

16 housing high-density proposal. Specifically, the higher density, according to GHD, has a direct effect upon the wetlands and watercourses. GHD states the following: While the total area of impact within the 100- foot upland review area is +6.2 acres or 269,805 square feet and is less than the original 21unit plan, the critical issue relative to upland review areas remains the overall environmental quality and viability of the upland buffer and consequently the wetlands following development. The Commission needs to consider how the altered buffer will function to protect wetland resources and down gradient water quality during and after construction. Given the overall amount of clearing and development of the vegetated upland areas is much more extensive, it will have a more significant impact on the overall environmental resource on the site and in the watershed. For example: 1. A block of existing growth approximately 500 feet wide and 800 feet long with extensions on two sides of several hundred feet is shown being cleared and developed on the eastern side of the site; A block of existing growth approximately 400 feet wide and 1,000 feet long with extensions in two directions is shown being cleared on the southwest side of the site. [GHD report, May 10, 2011, Page 11].

2.

Page 12: The difference in overall environmental impact to natural habitat and the full range of ecosystems between the two development proposals is dramatic; hence the impacts to the watershed lands are significant. The multi-family plan essentially clears habitat from the entire development zone, and the limited proposed plantings along the road edges and stormwater basins plus the written statements that plantings will be installed around the houses will not be a character that will support viable levels of local fauna. 3. Page 12: "The 21 homes would generate a usage based upon 21 families. In Easton, an overall family is just under 3 people per home, thus in round numbers using an average, this is about 60 people. If one accepts the argument that these homes would generate more people due to their expected size, and one uses 4 to 4.5 people on average, there would be 85 to perhaps 100 people occupying the Site based upon the approved application He further states, The new proposal of 99 units could be expected to generate somewhere between 1.75 to 2.5 people per unit: 170-250 people, considerably more people and activity on the site. This difference in the numbers of people likely to be in residence and supported on this site impacts many factors including traffic, water use and septic discharges, and the general use and impacts on the land once

17 development is constructed." 4. Page 26: With approximately 30% more total disturbance, the addition of 78 septic systems, the increase in density, proposed 225,000 sq. ft of permeable pavers, and the elimination of many of the natural resources and connectivity of remaining resources, this application should be viewed as a different project from the one approved for 21 individual residential lots." (Emphasis added by the Commission) Polly Edwards, the Easton Health Officer, in her memorandum to the Conservation Commission dated May 13, 2011, calculated that the 21 single family homes with 10 bedrooms each would generate total wastewater of approximately 22,050 gpd, while a development of 99 units with 2 bedrooms each would generate 29,700 gpd. Gary Dufel, in GHDs letter dated May 17, 2011, calculates, using average occupancy of 4.25 people per home and 2.13 people per townhouse unit and 70 gpd per person, that both the wastewater and nitrogen discharges would be 2.3 times higher. He concludes that based on impacts to down-gradient resources 99 2-bedroom units are not equivalent to 21 10-bedroom homes based on water loads and pollutant loads (in this case as measured by nitrogen). Any pollutants that are conserved and not removed in the soils (i.e. nitrogen) will have a greater cumulative load at wetland boundaries, and a greater cumulative impact on the wetlands and water resources. Michael S. Klein, soil scientist and wetland scientist for Environmental Planning Services, one of the experts for the Intervenor, in his May 24, 2011 letter to the Commission, concurs that the current application differs significantly from the approved 21- lot subdivision: "The March 4, 2011 plans for Saddle Ridge Village are not the plans that were approved in 2009 by the Easton Conservation Commission. The change in the intensity of the proposed land use, as well as the substantial increase in disturbance of land draining to the wetlands, creates a higher likelihood of indirect impacts to wetlands that were not considered in the agency's original proceedings. These factors point to a significant adverse impact on wetlands and watercourses." In summary, with regard to the differences between the two Applications, the Commission finds that there are fundamental differences, and it is a new Application as follows: a. 99 residential units vs. 21 residential units.

5.

6.

7.

18 b. The density of the new application exceeds levels recommended in the C & D Plan and by the Aquarion Water Company for development within watershed lands. 99 septic systems vs. 21 septic systems with resultant increase in wastewater discharges and pollutant loads. All driveways now to be permeable pavers amounting to 225,000 sq.ft (5.2acres) of permeable pavers. Infiltration basins for stormwater management changed to wet pools. Common driveways widened to 24 feet, 23% more land disturbed overall with significant increase in clear-cutting of vegetation with resulting thermal impacts to wetlands and watercourses as well as loss of habitat and stormwater infiltration. Introduction of water supply line necessary for a 99 unit application, but not necessary for 21 units. [See Section F.1.a.] The 21 lot subdivision does not require 9 separate homeowners associations to oversee maintenance. [See Section G]

c.

d.

e.

f.

g.

h.

D.

The Commission makes the following specific finds regarding stormwater control: 1. The Commission finds that stormwater control from residential development plays a key role in protecting nearby wetlands and watersheds for two drinking water reservoirs. GHD, in its letter dated May 24, 2011, Page 1, states, From testimony presented, no one can deny that these basins need to play a very key role in protecting the nearby wetlands and the watersheds for two drinking water reservoirs. Michael Klein noted (EPS, May 8, 2011, Page 4) that Given the sites location in public watershed lands and the proximity of the stormwater basins to wetlands, proper treatment for stormwater is of paramount concern. The DEP 2004 CT Stormwater Quality Manual, Chapter 2.4, Pages 2-6 presents a similar view. The Commission finds that the Stormwater Control Plan (drainage basins) proposed by the Applicant is inconsistent in its approach and contrary to the Applicants statements, fails to comply with the DEP 2004 CT Stormwater Quality Manual. The stormwater management plan does not demonstrate compliance with the Stormwater Manual or the General Permit. (EPS, Michael Klein, May 24, 2011, Page 4)

2.

19 Similarly, Steven Trinkaus, (Trinkaus Engineering, LLC) in his May 8, 2011 letter, Page 2, states, I continue to concur with the technical comments made by GHD regarding the proposed stormwater quality basins that they are not in compliance with the CT DEP 2004 Storm Water Quality Manual and on 5/24/11, Page 2, GHD stated, We continue to assert there is incomplete data on the existing soils and water table to assure the ponds will maintain a permanent pool, the designs are not consistent with the DEP Manual for such a proposal, nor is there credibility that soluble pollutants are being retained and treated. (Emphasis added by Commission) 3. The Commission concludes that absent a well designed stormwater control system based on adequate field testing to validate the design assumptions, pollutant loads not limited to excess nutrients, sediment loading, pathogens, organic materials, hydrocarbons, metals, de-icing constituents, and trash and debris [DEP 2004 WQM], will have an adverse effect on the adjacent wetlands and watersheds.

E.

The Commission makes the following specific findings regarding pavers: 1. The Commission finds that the use of 225,000+ square feet of permeable interlocking concrete pavement and grass pavers for common driveways and parking areas will have a significant adverse impact upon the wetlands and watercourses. While reductions in impervious pavement are generally desirable to mitigate development impacts, short term and long term efficacy of the paver system in this Application is questionable. The Commissions concerns include: a. The Applicants design, as shown in the ICPI Permeable Interlocking Concrete Pavement detail on Drawing D-4, conveys a subgrade of zero slope to allow the water to store within the stone subgrade and slowly percolate into the surrounding soils. However, most of the driveways are on a slope, ranging from mild grades to slopes as great as 10%. As indicated in the GHD report (May 10, 2011, Page 18), the concern is that rather than storing water in the stone layer, this stone will serve as a rapid underdrain system, the water will flow downhill and every so often water and soils will blow out forming deep ruts and damage the driving surface. This will then cause the groups of homeowners to pave over the system, eliminating the proposed benefit. While the Applicant indicated in its May 24, 2011 response (Section 4, Page 5) that underdrains would be installed on the steepest slopes, no updated drawings of this design modification were provided. b. The Commission has concerns as to the degree to which the paver system will provide the required Groundwater Recharge Volume

20 (GRV). The pavers will be installed over compacted fill, and as Trinkaus Engineering notes [May 8, 2011 letter]: It has not been demonstrated that the GRV will fully infiltrate this fill layer and enter the natural underlying soils which is the intent of the GRV. c. Indeed, as noted by GHD [May 10, 2011, Page 19], Milone and MacBroom used different calculations in an earlier engineering report (June 2010) to determine the retention volume of the permeable pavement sub-base. That report states that a clogging factor of 50% was used in the computations to account for potential loss of filtration and reduction in storage volume. This clogging factor was not included in the March 2011 report computations, and no explanation was provided for this change during the public hearings. d. GHD also noted [May 10, 2011, Page 19] that the paved road surfaces all contain an underdrain system to direct water to the stormwater basins. According to GHD, there is an inconsistency. If the engineer believes it is prudent to drain water from the roadway subbase, it must be assumed there is a fear that the underlying soils will not absorb this water. However the engineer is relying on this absorption in the permeable pavement locations. Again, no explanation was provided by the Applicant. e. The Commission is concerned that the paver system will not provide critical control of pollutants, including total suspended solids (TSS), zinc, copper, metals, phosphorus, and nitrogen. The potential for pollution in the area of these pavers is significant, since they will serve as driveways and parking areas around 99 homes. Potential pollutants include (but are certainly not limited to): lawn fertilizers, household hazardous waste, oil and other drippings from cars, garbage, and animal waste. The Applicant provided data on pollutant removal from the manufacturers product literature, but as Trinkaus Engineering noted [May 23, 2011 letter], there was no indication that this data was independently verified. f. Furthermore, the Applicant provided a table showing pollutant removal percentages from two sources (June 9, 2011, Section 2, Page 5), but the table does not indicate the timeframe for the suggested pollutant removal results. It is unclear whether pollutants will be removed at these levels for the lifetime of the pavers, or only when initially installed. The Commission has no assurance as to the validity of these tables without more comprehensive, independent, and verifiable analysis. g. The Commission is concerned that the efficacy of the permeable paver system depends on maintenance. As noted extensively during the public hearings, the pavers are highly susceptible to clogging by various substances and sediments. According to the Applicant

21 (May 24, 2011, Section 4, Page 5), the pavers would need to be vacuum-swept, and joint stones (pea gravel) replenished, at least twice per year. In between vacuuming, the effectiveness of the pavers in terms of infiltration and pollutant removal will steadily diminish. To retain any effectiveness at all, the maintenance plan will need to be followed rigorously. The entire viability of the paver system depends on it. Over the long run, the Commission is concerned as to whether the pavers will even be retained. Given the maintenance expense and trouble, the homeowners associations may choose to abandon the pavers entirely, and retrofit with impermeable pavement, with disastrous implications for the surrounding wetlands and watershed. 2. The Commission concludes the following as to pavers: Given various concerns about the design, data, and maintenance, the permeable paver system will not provide critical stormwater infiltration, groundwater recharge, and pollution control. The lack of a viable, sustainable paver system will have a direct, adverse impact on the wetlands, watercourses, and watershed.

F.

The Commission makes the following specific findings regarding the introduction of the water supply line: 1. The Commission finds that the introduction of a 1700 +/- water supply line presents a significant adverse impact upon the wetlands and watercourses as follows: a. The States policy in public drinking water supply watersheds is to discourage the introduction of infrastructure for the purpose of accommodating new development. Exceptions may be allowed in certain instances where development has already occurred, and added pollution controls are required to protect potable waters. Proposing a dense development that requires a new water line is in direct opposition to this important policy and the exception noted does not apply to this property that is currently undeveloped (C&D Development Plan, Conservation Area Policies, Page 7).

2.

Introduction of a water line may serve to induce further development along the route of the pipeline causing further incremental impacts.

The Commission concludes the following: The introduction of a water main to the property is inconsistent with the C & D Plan.

22 G. The Commission makes the following specific findings regarding maintenance and management by the separate homeowners associations: 1. The Commission finds that the proposal to have 9 separate homeowner associations provides an overlay of complexity and inefficiency which will aggravate all of the above problems and negatively impact the long term maintenance of functions affecting the wetlands. As noted in the GHD report of May 10, 2011 [Page 20], we believe maintenance responsibilities include the following: a. Snow plowing on private roads and shared parking areas without disturbing the pavers. Maintenance of pervious pavers twice a year (sweeping, vacuuming) on private roads and parking areas. Maintenance of stormwater systems. Maintenance of all lawn areas and common lands including mowing, maintenance of landscapes and judicious use of fertilizers. Repair, replacement and pump out of septic systems (pump outs generally every 2-3 years). Maintenance of exteriors of structures such as cleaning gutters and drains for proper disposal of water. Replacement of pervious pavers as they get clogged with dirt and grit or get uprooted by plowing or erosion.

b.

c. d.

e.

f.

g.

The failure of the associations to act, particularly with maintenance and repair of drainage and septic systems, can easily impact downgradient resources. It is unrealistic to expect these small groups to have the initiative and financial resources to act as needed, and it is unrealistic to expect each of the 9 associations to have enough interested and knowledgeable people to manage the work and expense that will be necessary. The Commission is concerned about timely maintenance of the property. Eight of the nine associations share a number of resources including the following: - Drainage from Lot 7 and 8 passes into the basin owned by Lot 9

23 - A portion of the drainage for Lot 3 passes to Lot 4s basin - Lot 3 and Lot 6 share a common basin that is located on Lots 2 and 3 - The drainage basin on Lot 1 is located on open space land, and - Lot 4 residents utilize the road of Lot 3 to access Lot 4 The Applicant has stated that maintenance will be performed by the owners of the lot where the infrastructure lies. However, there are significant inequities among lots in cost, use of, and responsibility for maintenance of such common areas that can be expected to produce conflict. The Commission is concerned that these conflicts will interfere with proper and timely maintenance which will adversely affect the wetlands. 2. In addition to the maintenance responsibilities enumerated above, the associations will need to manage the Drinking Water Quality Management Plan (DWQMP). The Plan is intended to ensure that construction and occupancy of the property will not adversely impact drinking water quality. Once the construction phase is completed it will need to be administered by the individual associations. Responsibilities include hiring and supervising contractors to inspect and maintain stormwater systems and basins and take action on deficiencies. Similar responsibilities apply to management of landscaping tasks including fertilizer/pesticide controls, turf management, septic cleaning scheduling and reporting, training of homeowners on proper septic use, hazardous spill response, and monitoring and reporting on periodic water quality testing. The success of the stormwater, septic system and other tasks proposed for the site depend on regular and proper maintenance and management. Questions to the Applicant regarding the Commissions concerns in this regard were answered each time with, The homeowners associations will take care of it. The health of the wetlands on the property and that of the down-gradient reservoirs depends, therefore, on the vigilance, efficiency, knowledge, funding, staffing and cooperation of the 9 Homeowners Associations proposed by the Applicant. A failure to act expeditiously and correctly in the maintenance and repair of septic systems, drainage basins, pervious pavers, and other items noted could have deleterious effects on the wetlands and watercourses. As GHD notes in its report of May 10, 2011, Page 21, concern regarding shared resources, where the homeowners association on one lot would bear responsibility for the repair of infrastructure that would primarily serve other lots is so stated, these lots have been unnaturally carved out for the purpose of avoiding DEP review of the septic systems. The contrived manner in which this is done for one purpose (septic

24 systems) has led to a maintenance challenge (roads and particularly drainage) that can be predicted to lead to maintenance problems and a hastening of the inevitable environmental problems. (Emphasis added by Commission) Michael Klein, in his Environmental Planning Services letter dated May 8, 2011, stated, regarding the Water Quality Management Plan, The proposed creation of 9 separate homeowners associations, coupled with stormwater management facilities that are shared between associations, makes for an administrative nightmare. (Emphasis added by Commission) The Commission concludes that the maintenance and management responsibilities required for the project as a whole are subject to significant conflicts and inefficiencies if carried out by 9 individual homeowner associations that will likely have a negative impact on the wetlands and water quality. H. The Commission makes the following specific findings regarding the Drinking Water Quality Management Plan (DWQMP): 1. The Applicant stated in its application Tab 11 that a DWQMP was developed to ensure that construction and occupancy of Saddle Ridge Village will not adversely impact drinking water quality. The goal of the DWQMP is to become the first step in ensuring that activities associated with the development of the site and its post-development daily operations will not adversely impact water quality, and provide for the placement and maintenance of the initial barriers in the multi-barrier approach to protection of public water supplies. Downstream barriers such as filtration and chemical treatment of the water supplies will always be available for protection of public health. The initial barriers help increase the effectiveness of filtration and treatment while minimizing the associated treatment costs. Michael Klein, in his Environmental Planning Services letter dated May 8, 2011 stated, The Water Quality Management Plan proposed by the Applicant has numerous deficiencies. It is not a full-fledged plan, but rather an outline of the basic elements of a plan. It has no funding, no enforcement mechanism, no definition of background levels, nor any definition of what constitutes a violation. He points out the ineffectiveness of managing it through the homeowners associations discussed in the prior section, and continues For example, a final WQMP is to be completed prior to construction, with input from a Technical Advisory Committee. The Technical Advisory Committee is to include two representatives from the homeowners associations. However, none of the homes will have been built yet, let alone sold. Four members are to be from state and local governmental agencies without any indication that these agencies are willing to perform this task, and have the manpower

2.

25 and legal authority to do so. The Aquarion Water Company is also proposed as a member, again without any indication that they are willing and able to so. The difficulties inherent in establishing an Advisory Committee and overseeing final drafting of the plan, let alone implementing the plan and any remedial measures that might be required, are overwhelming. 3. The Commission concludes that the DWQMP has been designed by the Applicant to give the appearance of preserving water quality but, as pointed out above, in practice would be ineffective. Any high density project as proposed can do nothing but degrade water quality. The creation of such a plan is entirely in the developers hands and effective management and enforcement in the interests of the community at large cannot be expected. The DWQMP is at best a list of suggestions that would be difficult to enforce.

I.

The Commission makes the following specific findings pursuant to Sec. 10.2 of the Regulations: 1. As noted in Section V of the Easton Regulations, the Commission has jurisdiction to consider the impact on the wetlands and watercourses from development and use activities both within the 100 Regulated Area and proposed activities in the more distant upland areas that are likely to affect a wetland or watercourse. Mr. Klein, in his letter dated May 8, 2011 states, The proposed development includes a substantial amount of vegetation removal, earth disturbance, grading, rock removal, installation of storm drainage and detention basins, construction of roads, driveways, and parking lots, installation of 99 sub-surface sewage disposal systems and construction of 31 buildings. Many of these activities are located within the 100' upland review area. Regardless of the distance between the activity and the nearest wetland boundary, virtually all of these activities generate a discharge to wetlands, watercourses or groundwater, during and after construction, thereby altering the physical, chemical and biological attributes of the wetlands and watercourses. (Emphasis added by Commission) The proposed high density development of the Site poses a reasonable threat to the environment and the inland wetlands and watercourses capacity to protect surface and ground water, to control sediment and to promote public health and safety in the public drinking water supply watershed. Expert testimony has given the Commission reason for concern regarding the discharge of nitrogen to the wetlands from the 99 septic systems. The testimony from GHD raised concerns about the potential for pollution of ground water as well as thermal impacts to wetlands and watercourses via the removal of

2.

3.

26 vegetation, roof runoff and impervious surfaces. GHD also pointed to the loss of habitat and ecosystem connectivity with the removal of vegetation and dense development. 4. In his March 24, 2011 letter in opposition to the current Application, Brian Roach, Environmental Protection Supervisor for the Aquarion Water Company states that the current Application proposed to develop this sensitive public drinking water supply area at twice the maximum recommended development density and consequently remains an inappropriate and unacceptable development plan for this location. A standard single-family subdivision is a feasible alternative with vastly less environmental impact, if any. Once the proposed high density development is implemented, the results will be irreversible. The wetlands and watercourses impacted are indispensable, irreplaceable and fragile natural resources. The proposed activity is not suitable and endangers the water quality of thousands of people in the greater Bridgeport area. Mitigations as proposed will take several years to materialize without any interim safeguards.

5.

6.

7.

8.

VII.

Findings Regarding Intervenor: A. With regard to the Notice of Intervention filed by the Coalition to Save Easton (CSE), c/o Chris Miles and Leslie Minasi: 1. The Easton Conservation Commission finds that the Intervenor are appropriate parties to intervene. The Intervenor have filed a verified pleading. The pleading alleges claims consistent with Section 22a-19 of the Connecticut General Statutes. Based upon the record, and for the reasons cited herein, the Commission finds that the proposed activities will involve conduct which is reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state. Specifically, the conduct will have a direct impact upon the wetlands and watercourses. More specifically, as set forth above in the findings of the Commission, the Commission finds that impairment will occur due to

2. 3.

4.

27 problems associated with increased density, nitrogen loading, use of pavers, water supply line, 99 septic systems, maintenance and management by the separate homeowners associations, inadequacy of the stormwater control plan, and the Drinking Water Quality Management Plan, all of which have been shown as activities causing unreasonable pollution and impairment to the water and other natural resources of the state. The reports from the Intervenor cited herein and appearing in the record support this conclusion: Environmental Planning Services (Michael S. Klein), reports dated May 8, 2011 and May 24, 2011; Trinkaus Engineering (Steven D. Trinkaus), reports dated October 22, 2010, November 4, 2010, December 3, 2010, May 8, 2011, and May 23, 2011; Catalyst Environmental Consulting Inc., report dated November 8, 2010. 5. The Commission finds that there is a prudent and feasible alternative, which is set forth below in Section VIII.

VIII. Prudent and Feasible Alternatives: The Commission concludes that a prudent and feasible alternative exists to this Application. Specifically, the prior 21 lot subdivision represents such a prudent and feasible alternative for the following reasons: A. The Applicant would achieve the goal of development of the property with significant reduction in overall disturbance to the site, which is in the watershed of two public water supply reservoirs. Reduction in vegetation removal would better preserve existing environmental conditions conducive to maintaining the health of on-site wetlands and wetland ecosystems as well as buffering the watercourses that feed the reservoirs. Reduction in the number of units would reduce the cumulative and ongoing impacts of increased numbers of residents. Reduction of the number of units to 21 would bring the density of development within the guidelines recommended by the State of Connecticut and the Aquarion Water Company, thereby better achieving the goal of protecting public health and safety. Reduction of the number of septic systems would reduce the amount of nitrogen discharged to the wetlands.

B.

C.

D.

E.

28

RES O LU T IO N Based upon the foregoing findings, including the findings regarding the Intervenor pursuant to Conn. Gen. Stat. Section 22a-19, the Commission RESOLVES to DENY the Application due to the significant adverse impact of the development upon the wetlands and watercourses. Specifically, the Commission resolves as follows: 1. The 99 unit development with all of its ancillary components represents an operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses. These represent regulated activities within the jurisdiction of this Commission, including, more specifically, discharges (stormwater, nitrogen), runoffs, pollutants, stormwater control, and other uses as set forth above. The Commissions definition of Regulated Activity and the Appendix C provision cited above provide jurisdiction for this Commission. 2. The direct and indirect effects resulting from the proposed activities present significant adverse impacts to the wetlands and watercourses, as set forth herein, and as supported by substantial evidence in the record. 3. The specific findings mentioned concerning unreasonably high density, high wastewater discharges and nitrogen loading from the 99 septic systems, the current application vs. that of the prior 21 lot subdivision, the conclusion that this is a new application, inadequacies in the stormwater control plan, effectiveness of using pavers, introduction of the water supply line, maintenance and management by the separate homeowner associations, the Drinking Water Quality Management Plan, and findings pursuant to Section 10.2 of the regulations are supported by substantial evidence in the record of this proceeding. Dated at Easton, Connecticut this 12th day of July, 2011. Members Voting: Roy Gosse, Chairman; Stephen Edwards, Vice Chairman; Dori Wollen; Catherine Alfandre; John Mehanna; and Marla Manning Motion made by: Stephen Edwards; Seconded by John Mehanna Vote: 6-0 In Favor: 6 / Opposed: None Eleanor Sylvestro was unavailable for the final vote. Adjournment: The meeting adjourned at 11:10 p.m. on July 12, 2011. ___________________________

29 Roy Gosse, Chairman