Is wind turbine assembly an allowed water-dependent use of State Pier?
I know boatyard owners who live in fear that the big black enforcement SUVs of the state Department of Energy and Environmental Protection might swoop in, desist orders flying, at the most minor of transgressions against the marine environment.
Honestly, boatyard managers might hardly dare dump a wheelbarrow full of grass clippings into the water without checking to see if they need a permit.
I can't help but think of this reputation of environmental police for aggressive monitoring of private businesses in Connecticut, while watching DEEP preparing to give a big pass to the state for its plans to fill in 7 acres of the deepwater port of New London and eliminate 23 acres of spawning habitat of winter flounder, a challenged fish species.
The $200 million remake of State Pier to benefit utilities Eversource and Ørsted seems to be sailing through DEEP's environmental review process, with a preliminary positive finding in place.
Still, one interesting legal issue about the pier plans that has been raised in the ongoing permit hearings on the project is the question of whether the reason for the project — creating a broad, flat space to assemble wind turbines destined for offshore farms — is a water-dependent use and therefore allowed in the coastal zone.
Both the applicant, the Connecticut Port Authority, and DEEP analysts contend the turbine assembly is indeed water-dependent.
However, Robert Fromer, an environmental activist and watchdog, has submitted a convincing argument that it is not water-dependent just because it might be more convenient or less expensive to do the work near the water.
Fromer cites testimony from the General Assembly at the time the coastal management law was passed, when lawmakers specifically rejected language that would have allowed water-enhanced uses and insisted on the term water-dependent.
Indeed, as the lawmakers asserted, what isn't enhanced by being on the water, including hotels and restaurants? The aim was to confine coastal development to things that can only be done on the waterfront, like fishing docks, marinas and ferry terminals, since you can't put those anywhere else.
There is a lot of legal interpretation of this issue, since it has arisen in states around the country trying to comply with federal laws regarding coastal management.
Much of the legal analysis takes a strict interpretation, with the suggestion, for instance, that even fish processing plants are not water-dependent since they can be built and used anywhere.
Even if DEEP finally concludes the assembly of wind turbines at State Pier is a water-dependent use, that finding could be the most obvious grounds for appeal of permits if someone sought a review by a court.
Steve Farrelly, owner of DRVN Enterprises, a salt business being dislocated by the project, noted in his comments filed in the hearing on the requested State Pier permits that the proposed project would eliminate deepwater dockage for shipping that the state desperately needs.
And there are alternative locations where turbines can be assembled, including other existing ports, he said.
"After a year and a half, and hundreds of thousands of dollars searching for another place to dock ships, I am uniquely positioned to factually state that deep water is a more precious resource than quayside laydown space," he said in his written testimony.
Farrelly is being put out of business to the benefit of his competitor, the operator of the port of New Haven, which also runs a salt business and was given the contract to manage the competing port of New London.
Antitrust issues related to the elimination of competition in both the shipping cargo and road salt businesses and the elimination of a water-dependent business in favor of one that may or may not be are things Farrelly undoubtedly would like to see a judge consider.
This is the opinion of David Collins.