You asked (1) if the law, specifically CGS § 22a-426, requires or allows the Department of Environmental Protection (DEP) to hold a public hearing regarding an application for a 401 Water Quality Certification (WQC) permit or revised permit.

SUMMARY

Any applicant for a federal license or permit must obtain from DEP a 401 WQC permit if the proposed activity may result in any discharge into navigable waters. The 401 WQC permit process does not require a public hearing. However, agency regulations permit the commissioner to hold an investigative hearing (1) about actual or potential noncompliance with any statute, regulation, license, or order he administers or issues or (2) on any matter that may reasonably be the subject of DEP regulation. The commissioner could therefore hold a hearing if activities resulting from the issuance of a 401 WQC permit were, for example, noncompliant with state water quality standards. Notably, DEP has not held such a hearing in at least 10 years, according to Tom Tyler, DEP legislative liaison.

Generally, DEP begins the 401 WQC permit process by reviewing an application’s technical documentation and assessing the site and the activities anticipated effects, along with other factors, to determine if a proposed discharge would be consistent with the federal Clean Water Act and Connecticut Water Quality Standards. After the initial review, DEP issues a tentative determination to grant or deny the permit application and solicits public comment. After further review, and consideration of any public comments, DEP issues a final decision on the permit application, according to its website. It issues 401 WQC permits pursuant to federal law.

CGS § 22a-426 does not require the DEP commissioner to hold a public hearing on an application for a 401 WQC permit. It sets an overall policy for management of water quality (i. e. , set the standards) and requires a public hearing for adopting, amending, or repealing standards. A copy of OLR Report 2004-R-0418 about water quality standards under CGS § 22a-426 is attached.

INVESTIGATIVE HEARING AND 401 WQC PERMIT

If an activity that a 401 WQC permit covers resulted in potential or actual noncompliance with any statute, regulation, license, or order that the DEP commissioner administers or issues, the commissioner could hold an investigative hearing. He could also have an investigative hearing to receive information about any matter that may reasonably be the subject of DEP regulation.

An investigative hearing must be open to the public and is subject to several other DEP Rules of Practice (e. g. , those concerning disrupting a hearing and suspending or reconvening it, smoking, and public access to documents). The hearing officer has the power to exclude irrelevant, immaterial, or unduly repetitious evidence; administer oaths; take testimony; and subpoena witnesses and evidence. After an investigative hearing, if the commissioner directs it, the hearing officer must prepare factual finding, legal conclusions, or both (Regs. of Ct. State Agencies, § 22a-3a(l)).

401 PERMIT

Any applicant for a federal license or permit, including a permit from the Federal Energy Regulatory Commission, a dredge and fill permit from the U. S. Army Corps of Engineers, or a bridge construction permit from the U. S. Coast Guard, must obtain from DEP a 401 WQC permit, under § 401 of the federal Clean Water Act (33 USC 1314), if the proposed activity may result in any discharge into the navigable waters. (Navigable waters are generally considered those subject to the flow of the tide, and used in interstate transport or foreign commerce).

DEP reviews an application’s technical documentation and assesses the site and the anticipated effects of the proposed activity and proposed impact mitigation or compensation. DEP's Fisheries and Wildlife divisions and the staff of the Natural Diversity Data Base program may also review the application, along with the federal resources agencies involved in reviewing the federal permit or license. After the initial review, DEP issues a tentative determination to grant or deny the permit application. DEP publishes a notice of tentative determination and solicits public comment on it. After further technical review, and the consideration of any public comments it received, DEP issues a final decision on the permit application.

In making a decision on an application, DEP must consider proposed discharges’ effects on (1) ground and surface water quality and (2) existing and designated uses of state waters. Conditions contained in a WQC permit become conditions of the federal permit or license, according to DEP’s website.

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