WETLANDS;

INLAND WETLANDS;

Court Cases; Connecticut laws/regulations;

You asked (1) why the Department of Environmental Protection (DEP) has apparently taken a strong stand against the construction of ponds on private property, (2) how a homeowner could get a ruling from the Army Corps of Engineers (Corps) on whether his property is suitable for a pond, and (3) for some contact information.

SUMMARY

The DEP reports there has been no change in its policy on pond construction since enactment of the Inland Wetlands and Watercourse Act in 1972. According to DEP officials, the agency neither encourages nor discourages construction of ponds on private property, but seeks to prevent harm to the environment.

In general, local inland wetlands commissions have jurisdiction over construction in wetlands in a particular town. DEP approval is generally needed only if the proposed construction involves building or altering a dam, obstructing a stream channel, or diverting the flow of surface water.

The Corps regulates structures and work in U. S. navigable waters and the discharge of dredged or fill material into all U. S. waters, including wetlands. According to a Corps spokesman, the pond’s location and construction method would determine whether the property owner would need a Corps permit.

The landowner should call the Corps and DEP to discuss his particular plans.

INLAND WETLANDS JURISDICTION

The Inland Wetlands and Watercourses Act regulates activities in state wetlands areas and watercourses (CGS § 22a-36 through 22a-45). Wetlands are any land consisting of soil types designated as poorly drained, very poorly drained, alluvial, or floodplain by the U. S. Department of Agriculture. Watercourses include rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs and all other water bodies. They may be natural or artificial, vernal (appearing in the spring) or intermittent, public or private, and must be contained within, flow through, or border upon the state (CGS § 22a-38(15) and (16)).

Local inland wetlands commissions regulate activities in wetlands areas and in uplands (non-wetlands areas) if the activity is likely to affect a wetlands or watercourse (CGS § 22a-42a(f)). Although regulations may differ by town, DEP says most towns have adopted some version of DEP’s model regulations.

Property owners do not need a permit for certain activities, such as maintaining existing structures and landscaping, but they do need a permit if these activities involve the removal or deposit of significant amounts of material from or onto a wetland or watercourse, or the diversion or alteration of a watercourse (CGS § 22a-40(4)).

Operations such as excavating a pond or depositing soil from a pond are considered regulated activities when performed within, or using, a wetlands or watercourse. A pond that is not built in a wetlands and does not impact a wetlands or watercourse may not require a permit. We should note, however, that once the pond is constructed, it falls under the definition of a watercourse, and under the commission’s jurisdiction.

DEP Authority Over Pond Construction

In addition to any local approvals that may be necessary, DEP has direct authority over certain activities. The department has jurisdiction in matters of dam safety, the placement of encroachments in stream channels, and water diversions.

When deciding whether to issue a dam construction permit, DEP considers the impact of the construction and the dam (1) on the environment and the safety of people and property, (2) inland wetlands and watercourses, and (3) the need for a fishway to allow fish to bypass the dam (http: //www. dep. state. ct. us/pao/IWRDfact/damconst. htm).

In deciding whether to issue a water diversion permit, the department considers, among other things, the diversion’s environmental impact and whether it (1) is necessary, (2) is consistent with long-range water resource management, (3) is consistent with the state plan of conservation and development, and (4) will not impair property management and use of the state’s water resources. Minor diversions may be exempt. More information is available on-line at http: //www. dep. state. ct. us/pao/IWRDfact/waterdiv. htm.

Corps Jurisdiction

The Corps regulates structures and work in U. S. navigable waters (Rivers and Harbors Act of 1899, § 10). Under § 404 of the Clean Water Act, the Corps also regulates the discharge of dredged or fill material into all U. S. waters, including wetlands (33 USC 1344). In deciding whether to issue a permit the Corps may consider such factors as economics, environmental concerns, navigation, recreation, water supply, water quality, energy needs, food production, and the general public welfare.

Because the Corps’ responsibilities are limited to activities in certain wetlands, a Corps spokesman states it would not get involved in cases where a property owner (1) excavates a pond in a wetlands, but deposits the soil someplace other than in a wetlands; (2) builds a pond in an upland area (unless he deposits the dredged or fill material in a wetlands); or (3) builds a pond in an isolated wetland area that is not physically, chemically or biologically connected to a water body or other wetlands.

We have attached a Corps brochure that may be helpful. The Corps New England District office is in Concord, Mass. and its toll-free telephone number is 1-800-343-4789. The brochure and more information on the Corps’ authority can be found on the Corps’ web site at Army Corps of Engineers New England District. More information on § 404 of the Clean Water Act can also be found on the Environmental Protection Agency’s web site, EPA > Wetlands > Wetlands Fact Sheet > Section 404 of the Clean Water Act: An Overview -

Information about DEP’s inland wetlands program is available on the DEP’s web site at http: //www. dep. state. ct. us/wtr/wetlands/inland. htm. We also have attached OLR report 2000-R-1075. HTM OLR Report 1 of 1, detailing individuals’ rights before inland wetlands commissions.

Finally, there are several DEP telephone numbers that may be helpful. The permit ombudsman’s number is 860-424-3003. The inland wetlands management program is 860-424-3019.

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