KENT, Conn.—The Department of Energy and Environmental Protection last week determined that it will not issue a declaratory ruling overturning the ordinance banning the use of wake-enhancing devices on Lake Waramaug.
It rejected every request in a petition filed by Lake Waramaug Friends for Common-Sense (LWF), which advocates for allowing wake surfing on the long, shallow body of water.
The ordinance was passed overwhelmingly last summer by the three towns surrounding the lake. Washington passed the ordinance 649-186; Warren, which has the most real estate around the lake, voted 335-139 for the ban, and Kent, which has the shortest shoreline, approved it 468-96. When the votes are combined 78 percent of those voting approved the ban and only 22 percent supported the activity.
After the simultaneous July 31 votes, the identical ordinances were forwarded to DEEP for review and acceptance. On October 6, DEEP issued its unqualified approval, but in November the Friends group filed a petition asking DEEP to rescind its decision.
An opposing group, Protect Lake Waramaug was granted intervenor status in January and argued that all the points raised by the petition had been aired before. Protect Lake Waramaug contends that wake surfing is harmful to the ecology of the lake and bothersome for others using the lake for recreation.
There are three public beaches on Lake Waramaug—the Kent State Park and the town beaches in Warren and Washington—and a public boat launch. Many enjoy the beaches, kayaking, canoeing and fishing on the lake.
Even before the municipal votes took place, LWF had petitioned DEEP to “prohibit a ban on wake surfing on Lake Waramaug and instead adopt reasonable regulations to ensure that wake surfing is appropriately regulated so that it can be undertaken safely while having minimal impacts on other recreational and environmental uses at Lake Waramaug.”
Individuals can petition for state-level regulations if the relevant municipalities have not already adopted regulations or if state-level regulation is necessary to establish uniformity on a shared waterbody. The statute does not impose a timeframe for the department to act on such a petition and no hearing was planned before the municipal votes.
In August, the three towns submitted approved ordinances to DEEP regulating wake surfing on Lake Waramaug. The new ordinances only became effective after DEEP approval. After DEEP approval in October, there was no further avenue for state-level regulation, because both prerequisites were removed—local ordinances now existed, and there was no need for uniformity since the three ordinances were identical.
LWF then petitioned DEEP in November to reverse its decision. It asserted that the ordinances passed by Kent, Warren and Washington were “arbitrary, unreasonable, unnecessarily restrictive and inimical to uniformity.”
Additionally, LWF requested a finding that the ordinances are preempted by federal law and a further finding that they constituted a “taking without just compensation”—assertions DEEP found to be “meritless.”
The petitioners quoted various cases to show that federal boating safety standards preempt those of states. However, DEEP responded, the federal statutes only prohibit certain kinds of state/local regulations on “recreational vessel or associated equipment performance or other safety standards.”
The local ordinances, DEEP decided, do not appear to establish any equipment performance or safety standard, much less to impose an equipment requirement. It merely restricts the use of a type of equipment during boating … that creates a wake and does not conflict with The Federal Boat Safety Act.
As to the assertion of “taking without just compensation,” DEEP found unpersuasive LWF’s argument that banning the use of ballasts on a wake boat “is akin to banning the use of sails on a sailboat.”
“Boats with ballasts can still be used on Lake Waramaug, just not to artificially enhance or create wakes,” the decision declared.
DEEP found that the term “arbitrary” is not defined in the statute, “But … the local ordinances on their face are not arbitrary [as the] ordinance preamble … refers to ‘serious safety risks,’ ‘destructive erosion,’ and concerns about impaired water quality and invasive species related to wake surfing.”
The response further stated, “The process leading up to their passage also was not arbitrary but instead showed that the towns deliberated the decision.”
DEEP further concluded, “Lake Waramaug lacks robust statewide public access, and so the ordinance is not as restrictive to statewide recreational users as it would be if employed at a waterbody with statewide motorized/trailered public access and use.”
As to being “inimical to uniformity,” DEEP noted that the ordinances in the three towns are identical, ensuring uniformity.
DEEP noted in its approval of the ordinance, “Connecticut has not adopted any statutes or regulations specific to wake surfing or wake enhancing devices in public waterbodies,” meaning that the ordinance does not “conflict with or duplicate state policy,” and also that it did not create any inconsistency within the boating safety laws in in the General Statutes.
