You asked whether an approved site plan or existing use in or near wetlands must comply with subsequent changes in inland wetlands regulations. The Office of Legislative Research is not authorized to issue legal opinions, and this memo should not be considered one.

The answer to your question depends on the circumstances that apply. Under CGS § 22a-42e, an application for a wetlands permit that conforms with the wetlands regulations in effect on the date the application was received does not have to comply with subsequent changes to the regulations, including changes to setbacks and buffers. The courts therefore may not dismiss an appeal of the wetland agency’s decision on the grounds that such a change has taken effect on or after the date the application was received. CGS § 22a-42e, adopted in 1991, substantially overruled the state Supreme Court’s decision in McCallum v. Inland Wetlands Commission, 196 Conn. 218 (1985). This decision held that appeals of municipal wetlands decisions had to be decided based on the regulations in effect when the court took the case, i. e. , approved developments were not protected (grandfathered) from subsequent changes in the regulations. With the adoption of CGS § 22a-42e, it appears that a wetland agency’s expansion of buffer areas would not affect previously approved site plans or existing uses within the area newly subject to the wetlands regulations. Similarly, an increase in setbacks would not affect approved land uses within a previously designated wetland.

On the other hand, under CGS § 22a-42e, the grandfathering provisions do not apply to (1) establishment, amendment, or change to the boundaries of inland wetlands or watercourses or (2) changes in the municipal regulations needed to make them consistent with the state’s wetlands law (CGS § 22a-28 through 22a-45d).

The Supreme Court has held, in Paupamuk Development Corporation v. Conservation Commission, 229 Conn. 247 (1994) that the McCallum decision regarding the applicability of subsequent changes to wetlands regulations does apply to the exceptions to the grandfathering provisions. Thus, it appears that if a developer had an approved site plan for property that is subsequently designated as a wetlands due to a boundary change, he might be required to obtain a wetlands permit and amend his site plan to conform with the municipality’s wetlands regulations. Similarly, the owner of an existing use might have to obtain a wetlands permit and comply with the regulations if wetland boundaries or the state wetlands law had changed.

It appears that the key issue in such circumstances is whether the site plan or existing use encompasses “regulated activities” under the wetlands law. By law, regulated activities are any operations within or use of a wetland or watercourse involving (1) removal or deposition of material of the wetland or watercourse or (2) obstruction, construction, alteration, or pollution of the wetland or watercourse (CGS § 22a-38). But regulated activities do not include “as of right” operations and uses (CGS § 22a-40). These include:

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