You asked (1) whether the statutes allow municipalities to adopt an ordinance that sets development standards for public water supply watershed lands and (2) what other states have done to protect such watershed lands. OLR Report 2006-R-0070 provides brief descriptions of state watershed planning initiatives nine states, primarily in the northeast. OLR Report 2005-R-0820 describes how other states fund acquisition of watershed land for drinking water supplies. Both reports are attached.

MUNICIPAL REGULATION OF DEVELOPMENTS IN WATERSHEDS

The statutes do not specifically authorize municipalities to adopt ordinances that set development standards for public water supply watershed lands, but several statutes give municipalities broad powers in this area. CGS § 7-148 allows municipalities to adopt ordinances to provide for the protection and improvement of the environment, including wetlands and areas adjacent to waterways, so long as the ordinance does not conflict with the statutes. Wetlands and waterways are major components of watersheds.

CGS § 22a-42 et seq. requires municipal inland wetlands agencies to adopt regulations that specify the criteria and procedures for the review of applications for regulated activities such as excavations in wetland areas. In practice, wetlands agencies often also regulate activities in adjoining areas that can affect wetlands. The municipal regulations must be consistent with CGS § 22a-41, which governs how the Department of Environmental Protection regulates state agency actions in wetlands.

Finally, the land use laws give municipalities broad discretion in regulating developments, which could be used to set development standards in public water supply watershed lands. CGS § 8-2 requires that local zoning regulations be designed to protect against floods and must consider the protection of existing and potential water supply sources. CGS § 8-2l requires revisions to zoning regulations to provide for measures that limit further encroachments on flood plains, which often overlap watersheds. Finally, CGS § 8-25 requires that municipal subdivision regulations provide for sediment control and prevention of soil erosion. Both the zoning and subdivision statutes allow regulations to promote cluster developments, which can help protect watersheds.

States have taken a variety of legislative approaches to protect public water supply watershed lands by regulating development. This report discusses programs in Maryland, Minnesota, New York, and North Carolina. Maryland's comprehensive “smart growth” legislation establishes principles that must be followed in local land use planning and state agency actions, including the protection of critical areas such as streams and wetlands. The Minnesota law authorizes the establishment of watershed districts to conserve natural resources by land use planning, among other means. New York has a law designed to protect the Pine Barrens, which is a major source of groundwater for Long Island, by requiring that local land use laws conform to a state plan. North Carolina law requires all local governments having land use jurisdiction within water supply watersheds to adopt and implement watershed protection ordinances, maps, and a management plan.

INITIATIVES IN OTHER STATES

Maryland

Maryland's Economic Growth, Resource Protection, and Planning Act of 1992 (Md. Ann. Code Art. 66B) was enacted to organize and direct comprehensive planning, regulating, and funding by state, county, and municipal governments to advance a specific economic growth and resource protection policy, including the protection of watersheds. The policy is organized around seven statutory principles that must be pursued in county and municipal comprehensive plans. These plans establish priorities for land use, economic growth, and resource

protection. The state must follow these principles in undertaking its various programs. Both state and local funding decisions on public construction projects must adhere to the principles.

Among other things, the act required that the measures to protect sensitive areas be incorporated into county and municipal comprehensive plans. It requires that each plan include a Sensitive Areas element that contains goals, objectives, principles, and standards designed to protect these areas from the adverse effects of development. These sensitive areas include several components of watersheds, including streams and their buffers, and 100-year floodplains. The act permits local governments to determine the levels of protection. The Maryland Department of Planning published two Model and Guidelines reports on this topic. These reports suggest both regulatory measures and incentive programs that local governments can use to promote conformity with the state's planning principles.

After the plans are amended, implementation tools such as zoning ordinances and subdivision regulations must be amended to be consistent with the plan and the seven principles. The act also requires local governments to review and update, if necessary, their comprehensive plans at least once every six years.

The state must also follow the principles contained in the act. The act makes each state agency responsible for evaluating its own projects against the state's growth policy and to make a determination as to consistency of the project. Agencies may not fund a state public works, transportation, or major capital improvement project unless it is consistent with the state's economic growth, resource protection, and planning policy and the comprehensive plan of the jurisdiction where the project is located.

Maryland has a number of other initiatives that affect developments in wetlands, including the multi-state Chesapeake Bay agreement. The agreement sets several goals, including that by 2010, participating states will implement the wetlands plan component in 25% of the land area of their respective watersheds of the bay. The state plans would preserve key wetlands while addressing surrounding land use so as to preserve wetland functions.

Further information about Maryland's watersheds initiatives is available at http: //www. dnr. state. md. us/watersheds/pubs/planninguserguide/UserGuideChapter2. pdf.

Minnesota

Minnesota law (Minn. Stat. 103D. 201 et seq. ) authorizes the establishment of watershed districts to conserve natural resources by land use planning, flood control, and other conservation projects. Watershed districts have a broad range of powers, including the regulation of improvements made by riparian property owners of the beds, banks, and shores of watercourses wetlands. Districts can also provide for the protection of groundwater and regulate its use, among other things.

New York

In 1993, New York State passed legislation (N. Y. Env. Cons. Law § 57-0101 et seq. ) to protect the Long Island Pine Barrens. One of the findings the legislature made in passing this act was that the Pine Barrens overlies the largest source of pure groundwater in the state. The legislature also found that the central Pine Barrens area needed a state supported regional comprehensive land use plan. This plan would provide for the preservation of the area and the designation of compatible growth areas to accommodate appropriate patterns of development and regional growth with recognition of the rights of private land owners. This area covers about 160 square miles.

The act created a five member Central Pine Barrens Joint Planning and Policy Commission, an Advisory Committee, and mandated the production and implementation of the comprehensive land use plan. The law required that the plan be designed to protect the quality of surface water and groundwater and discourage piecemeal and scattered development, among other things. The plan was adopted in June 1995. The act required each town and village board in the central Pine Barrens area to adopt and amend as necessary land use and zoning regulations, to conform their land use regulations to the comprehensive land use plan. The plan also established a transfer of developments rights program, defined sending and receiving areas, business procedures, tracking requirements, credit allocations, and related details. Further information about the act and the plan are available at http: //pb. state. ny. us/.

North Carolina

In 1989, the North Carolina legislature adopted the Water Supply Watershed Protection Act (N. C. Gen. Stat. § 143-214. 5 and 143-214. 6). The act required the Environmental Management Commission to adopt minimum statewide water supply protection standards by January 1, 1991 and to reclassify all existing surface water supply watersheds to the appropriate classification by January 1, 1992. These dates were modified by the legislature in 1991. The law was challenged on constitutional grounds but upheld by the state Supreme Court in Town of Spruce Pine v. Avery County, 123 N. C. App. 704, 710, 475 S. E. 2d 233, 237 (1996), rev'd on other grounds, 346 N. C. 787, 488 S. E. 2d 144 (1997).

The Water Supply Watershed Protection Rules adopted by the commission in 1992 required all local governments (municipalities and counties) having land use jurisdiction within water supply watersheds to adopt and implement watershed protection ordinances, maps, and a management plan. Approximately 20% of the state's land area is in such watersheds. To help local governments, the commission approved a model ordinance in 1992. This document suggests appropriate language for adopting an ordinance under the general adoption powers.

The commission has placed watersheds in four categories. Development is permitted everywhere except class I watersheds, where all the land is publicly owned (these watersheds account for 0. 2% of the state's land area). In the remaining watersheds, local governments can permit high or low density developments, with density limits depending on whether the area is a critical area or not. The high density development option allows for more of the site to be built upon through the use of stormwater management techniques. These techniques mitigate the effects of the larger impervious surfaces and the resulting increased rainfall runoff. With the high density option, development can potentially reach a 70% maximum built-upon area, depending upon the watershed classification. In contrast, no more than 24% of an area can be built upon under the low density option (no more than two dwelling units per acre). Local governments can average the density of non-contiguous developments.

In non-critical areas, local governments can take advantage of the “10/70” provision. Under this provision, a local government can use 10% of the non-critical area of each watershed within its jurisdiction for new development and expansions to existing development up to a 70% built-upon area limit, without requiring stormwater control. The provision is available in areas where the local government only allows development using the low density option. Local governments can use this technique to “swap” publicly-owned, flood-prone, or otherwise undevelopable land in order to target growth at a higher density elsewhere within the watershed. The provision requires a 100-foot buffer along all perennial streams when being used.

The program also requires the use of best practices to avoid runoff in the agriculture and forestry sectors. Further information about this program is available at http: //h2o. enr. state. nc. us/wswp/index. html.

KM: dw