Water dependent means exactly that
Recent opinions by Columnist David Collins supporting the proposed siting of a seasonal restaurant on a city-owned pier in the Downtown Waterfront Park and the editorial board’s praising Governor Ned Lamont’s announcement of a public-private partnership for upgrading State Pier both ignore the statutory provisions of the Connecticut Coastal Management Act.
In the case of the restaurant, the city wanted to lease the Custom House pier to Frank Maratta for a seasonal restaurant. The partnership announced by the governor would invest in the pier to provide infrastructure in support of offshore wind-power development.
Notably, in 1991, the then Department of Environmental Protection denied Maratta a permit to operate a restaurant on the Connecticut River as a nonwatery-dependent use.
The message, Mr. Maratta and New London Mayor Michael Passero: no new restaurants are permitted on the water, period.
The Coastal Management Act ensures appropriate management of coastal resources, which are held in trust for all citizens of Connecticut and which serve to protect traditional uses of the water.
This means that along the coastline only land uses requiring direct access to the water are permitted at sites suitable for such use. Also, it is impermissible to replace a “water-dependent use” with a nonwater-dependent use. As a result, hotels, restaurants, and museums – even nautical/maritime based facilities such as the proposed Coast Guard Museum – are prohibited uses because they can all be located inland; they have no need for direct access to the Thames River.
In an October 2018 letter to Mayor Passero, the Commissioner of the Department of Energy and Environmental Protection understood that the City of New London is exploring the possibility of siting a seasonal restaurant within a redesigned shipping container along with picnic table seating on one of its city-owned piers in what is known as the "Downtown Waterfront Park" consisting of City Pier, Discovery Pier, Custom House Pier and Coast Guard Pier. The commissioner advised the mayor that such a proposal would require authorization from DEEP and would likely be inconsistent with applicable statutory standards.
The letter further states that the downtown piers and the esplanade connecting them create a tourist destination unparalleled in the region. The purpose of these over-water structures is to provide public access, berthing for visiting boats and Tall Ships, fishing opportunities, viewing opportunities and other water-based recreation for residents and tourists alike.
Siting private non-water dependent uses such as restaurants, which can be located on land, on these over-water structures conflicts with the act‘s water-dependent use policies and the state's obligation to manage its public trust resources for the benefit of the public. For these reasons, the department has discouraged previous proposals to locate floating or over-the-water restaurants in Connecticut waters.
In 1999, DEP issued a permit authorizing construction for components of the Downtown Waterfront Park specifically for the purpose of "public access and recreational boating," both of which are water-dependent uses. A condition of the permit states that any proposed change in use or ownership of these piers must be referred in writing to DEEP. The proposed restaurant would be a nonwater-dependent change in use that would be inconsistent with the act, which gives highest priority and preference to water-dependent uses.
Additionally, the letter stated that use of a shipping container to house the proposed restaurant would not exempt the proposal from Federal Emergency Management Agency (FEMA) floodplain construction standards. A shipping container building at this site would constitute a new structure in the coastal floodplain subject to three-foot waves and intense wave action. Threats of hurricanes, coastal storms and flooding make areas over the water poorly suited for permanent and seasonal structures.
Furthermore, DEEP is duty bound to discourage any nonwater-dependent facilities such as restaurants in the Downtown Waterfront Park. The waters and submerged tidelands of the state belong to the people. The encroachment of the piers into public trust waters is intended to expand public access to the waters of the state and allow for more water-based recreational opportunities.
The same arguments apply to the Coast Guard Museum and State Pier. Granting Passero a change of permit authorizing the restaurant would establish a dangerous precedent justifying the downtown location of the museum and State Pier use for assemblage of wind turbine components.
Unquestionably, the museum can be located inland as can the assemblage of wind turbines.
The DEEP commissioner should resist any political arm twisting by the governor, mayor and the Port Authority and strictly enforce the Coast Management Act.
Robert Fromer is a former resident of New London and an occasional contributor to The Day on environmental issues. He lives in Windsor.
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