AN ACT CONCERNING COASTAL PROTECTION MEASURES, ROUTINE MAINTENANCE AND REPAIR OF SHORELINE STRUCTURES, STATE-WIDE POLICY CONCERNING WATER RESOURCES AND PROCEDURES OF THE DEPARTMENT OF ENERGY AND ENVIRONMENTAL PROTECTION.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 22a-363a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

For the purposes of this section and sections 22a-361, 22a-361a, 22a-362, 22a-363b, as amended by this act, and 22a-363d to 22a-363f, inclusive: "Substantial maintenance" means rebuilding, reconstructing, or reestablishing to a preexisting condition and dimension any structure, fill, obstruction or encroachment; "routine maintenance" means replacement and repair of out-of-water structures including the surfaces of docks, piers, wharves and bridges, replacement or repair in any year of up to [twenty-five] fifty per cent of all pilings approved in accordance with section 22a-361 and seasonal installation, reinstallation or repair of floating docks, provided that all locations, dimensions, elevations and materials shall remain the same as or equivalent to that approved in accordance with said section; "perimeter permit" means a permit issued in accordance with said section, establishing boundaries waterward of the coastal jurisdiction line within which recreational marinas layout of in-water slips, docks and moorings may be reconfigured; "work" means any activity, construction, or site preparation, erection of structures or placement of fill, including but not limited to grading, excavating, dredging or disposing of dredged material, depositing of soil, stones, sand, gravel, mud, aggregate or construction materials, filling, removing vegetation or other material, or other modification of a site within the tidal, coastal or navigable waters of the state waterward of the coastal jurisdiction line.

Sec. 2. Section 22a-363b of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

(a) Routine maintenance of permitted structures, fill, obstructions or encroachments or routine maintenance of structures, fill, obstructions or encroachments in place prior to [June 24, 1939] January 1, 1995, and continuously maintained and serviceable since that date shall be exempt from the requirements of obtaining certificates of permission or permits pursuant to section 22a-363a, as amended by this act, this section or section 22a-361, provided such structures, fill, obstructions or encroachments have not been the subject of a violation issued by a municipality or the Department of Energy and Environmental Protection prior to October 1, 2013. The following activities may be eligible for a certificate of permission, in accordance with the provisions of subsections (c) and (d) of this section: (1) Substantial maintenance or repair of existing structures, fill, obstructions or encroachments authorized pursuant to section 22a-33 or 22a-361; (2) substantial maintenance of any structures, fill, obstructions or encroachments in place prior to [June 24, 1939] January 1, 1995, and continuously maintained and serviceable since such time; (3) maintenance dredging of areas which have been dredged and continuously maintained and serviceable as authorized pursuant to section 22a-33 or 22a-361; (4) activities allowed pursuant to a perimeter permit and requiring authorization by the commissioner; (5) the removal of derelict structures or vessels; (6) minor alterations or amendments to permitted activities consistent with the original permit; (7) minor alterations or amendments to activities completed prior to [June 24, 1939] January 1, 1995; (8) placement of temporary structures for water-dependent uses, as defined in section 22a-93; (9) open water marsh management, tidal wetland restoration, resource restoration or enhancement activity, as defined in subsection (a) of section 22a-361, and conservation activities undertaken by or under the supervision of the Department of Energy and Environmental Protection; (10) the placement or reconfiguration of piers, floats, docks or moorings within existing waterward boundaries of recreational marinas or yacht clubs which have been authorized pursuant to section 22a-33 or 22a-361; and (11) substantial maintenance or repair of structures, fill, obstructions or encroachments placed landward of the mean high waterline and waterward of the coastal jurisdiction line completed prior to [October 1, 1987] January 1, 1995, and continuously maintained and serviceable since said date. Notwithstanding the provisions of sections 22a-29 to 22a-35, inclusive, the commissioner may issue a certificate of permission for activities enumerated in this subsection which are to be conducted in tidal wetlands. Upon issuance, such certificate shall be in lieu of the permit required pursuant to section 22a-32.

(b) The commissioner [may] shall issue a certificate of permission for activities [which] that were completed prior to January 1, 1995, for which permits, certificates or emergency authorizations were required pursuant to section 22a-32, this section, section 22a-361 or section 22a-363d, which were conducted without such permit, certificate or emergency authorization, [provided the applicant demonstrates that such activity complies with all applicable standards and criteria. In determining the eligibility of activities conducted without prior authorization, the commissioner may consider whether the applicant acquired such real estate interest in the work site after the date of conduct of the unauthorized activity, is not otherwise liable for the unauthorized activity as a result of actions taken prior to the acquisition and did not know and had no reason to know of the unauthorized activity] provided such activities were not the subject of a violation issued by a municipality or the Department of Energy and Environmental Protection prior to October 1, 2012. The commissioner [may] shall authorize the maintenance of or minor alterations to unauthorized activities consistent with this subsection, including the use of alternative deck surfacing materials and the use of standard and accepted materials to repair or replace existing seawalls. Unauthorized activities which are ineligible for certificates of permission may be subject to applicable enforcement actions by the commissioner.

(c) A request for a certificate of permission shall be made to the Commissioner of Energy and Environmental Protection. If a proposed activity is within a category listed in subsection (a) or (b) of this section, the commissioner [may] shall, in whole or in part, approve, modify and approve or deny a certificate. The commissioner shall issue such a certificate if the eligible proposed activity is consistent with a permit issued pursuant to section 22a-33 or 22a-361 or was in place prior to [June 24, 1939] January 1, 1995, and continuously maintained and serviceable since such time. If the eligible proposed activity does not have a permit or has not received any prior permits, the commissioner shall determine if the information provided is sufficient to determine if the proposed activity complies with the applicable standards and criteria and may (1) issue a certificate of permission if the commissioner finds that the information indicates compliance with all applicable standards and criteria, or (2) require the submittal of a complete application for a permit pursuant to section 22a-32 or 22a-361, if the commissioner finds that the information is not sufficient to indicate compliance with the standards and criteria. [If the commissioner finds that changes in conditions or circumstances associated with a permitted structure, fill, obstruction or encroachment are likely to result in significant impacts to the environment or coastal resources, the commissioner may require an application for a permit pursuant to section 22a-32 or 22a-361.] If the commissioner finds that the structure, fill, obstruction or encroachment is not in substantial compliance with the permit or authorization under which a certificate of permission is requested, and is not consistent with applicable standards and criteria, the commissioner shall not issue a certificate of permission. For the purposes of this section, standards and criteria are those specified in sections 22a-33 and 22a-359 and regulations adopted pursuant to section 22a-30, in any regulations adopted pursuant to subsection (c) of said section 22a-361, in the water quality standards of the Department of Energy and Environmental Protection, and in sections 22a-92 and 22a-98 for activities within the coastal boundary, as defined in section 22a-93.

(d) The commissioner shall, within [forty-five] thirty days of receipt of a request for a certificate of permission, issue such certificate or notify the person making such request that (1) additional information or an application for a permit pursuant to section 22a-32 or 22a-361 is required, or (2) the structure, fill, obstruction or encroachment is not eligible for a certificate of permission. If the commissioner requests additional information from an applicant, the commissioner shall make a determination on the application no later than ninety days from the date of receipt of the request for a certificate of permission. If the commissioner fails to respond within [forty-five] thirty days of receipt of a request, the certificate of permission shall be deemed approved, except that no certificate of permission for dredging [,] or activities located within tidal wetlands, as defined in section 22a-29 [, or activities conducted without prior authorization] shall be deemed approved by virtue of the commissioner's failure to respond.

(e) Notwithstanding the provisions of the general statutes, the commissioner shall not issue a certificate of permission for a pound net, weir or similar fish harvesting structure that was not utilized prior to June 6, 2001. The commissioner may issue a permit for such fish harvesting structure, in accordance with section 22a-361, provided, if the commissioner receives a petition signed by twenty-five or more persons during the public comment period provided in subsection (b) of section 22a-361 for the application for any such permit, the commissioner shall hold a public hearing on such permit application.

(f) The commissioner shall consider an easement in perpetuity to be the same as an interest in fee simple for purposes of evaluating any application filed pursuant to this section.

Sec. 3. (NEW) (Effective October 1, 2013) In the event of an issuance of a hurricane warning by the National Hurricane Center of the National Weather Service in any part of the state, any property owner or municipality may, in the twenty-four hours prior to the predicted commencement of the hurricane, fortify property above the coastal jurisdiction line with temporary structures, including sand bags, blocks and other suitable materials. Any such structures must be removed not later than forty-eight hours after a hurricane warning is lifted.

Sec. 4. Subsection (b) of section 22a-92 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

(b) In addition to the policies stated in subsection (a) of this section, the following policies are established for federal, state and municipal agencies in carrying out their responsibilities under this chapter:

(1) Policies concerning development, facilities and uses within the coastal boundary are: (A) To manage uses in the coastal boundary through existing municipal planning, zoning and other local regulatory authorities and through existing state structures, dredging, wetlands, and other state siting and regulatory authorities, giving highest priority and preference to water-dependent uses and facilities in shorefront areas; (B) to locate and phase sewer and water lines so as to encourage concentrated development in areas which are suitable for development; and to disapprove extension of sewer and water services into developed and undeveloped beaches, barrier beaches and tidal wetlands except that, when necessary to abate existing sources of pollution, sewers that will accommodate existing uses with limited excess capacity may be used; (C) to promote, through existing state and local planning, development, promotional and regulatory authorities, the development, reuse or redevelopment of existing urban and commercial fishing ports giving highest priority and preference to water dependent uses, including but not limited to commercial and recreational fishing and boating uses; to disallow uses which unreasonably congest navigation channels, or unreasonably preclude boating support facilities elsewhere in a port or harbor; and to minimize the risk of oil and chemical spills at port facilities; (D) to require that structures in tidal wetlands and coastal waters be designed, constructed and maintained to minimize adverse impacts on coastal resources, circulation and sedimentation patterns, water quality, and flooding and erosion, to reduce to the maximum extent practicable the use of fill, and to reduce conflicts with the riparian rights of adjacent landowners; (E) to disallow the siting within the coastal boundary of new tank farms and other new fuel and chemical storage facilities which can reasonably be located inland and to require any new storage tanks which must be located within the coastal boundary to abut existing storage tanks or to be located in urban industrial areas and to be adequately protected against floods and spills; (F) to make use of rehabilitation, upgrading and improvement of existing transportation facilities as the primary means of meeting transportation needs in the coastal area; (G) to encourage increased recreational boating use of coastal waters, where feasible, by (i) providing additional berthing space in existing harbors, (ii) limiting non-water-dependent land uses that preclude boating support facilities, (iii) increasing state-owned launching facilities, and (iv) providing for new boating facilities in natural harbors, new protected water areas and in areas dredged from dry land; (H) to protect coastal resources by requiring, where feasible, that such boating uses and facilities (i) minimize disruption or degradation of natural coastal resources, (ii) utilize existing altered, developed or redevelopment areas, (iii) are located to assure optimal distribution of state-owned facilities to the state-wide boating public, and (iv) utilize ramps and dry storage rather than slips in environmentally sensitive areas; (I) to protect and where feasible, upgrade facilities serving the commercial fishing and recreational boating industries; to maintain existing authorized commercial fishing and recreational boating harbor space unless the demand for these facilities no longer exists or adequate space has been provided; to design and locate, where feasible, proposed recreational boating facilities in a manner which does not interfere with the needs of the commercial fishing industry; [and] (J) to require reasonable mitigation measures where development would adversely impact historical, archaeological, or paleontological resources that have been designated by the state historic preservation officer; and (K) to encourage the cooperative use of confined aquatic disposal cells.

(2) Policies concerning coastal land and water resources within the coastal boundary are: (A) To manage coastal bluffs and escarpments so as to preserve their slope and toe; to discourage uses which do not permit continued natural rates of erosion and to disapprove uses that accelerate slope erosion and alter essential patterns and supply of sediments to the littoral transport system; (B) to manage rocky shorefronts so as to ensure that development proceeds in a manner which does not irreparably reduce the capability of the system to support a healthy intertidal biological community; to provide feeding grounds and refuge for shorebirds and finfish, and to dissipate and absorb storm and wave energies; (C) to preserve the dynamic form and integrity of natural beach systems in order to provide critical wildlife habitats, a reservoir for sand supply, a buffer for coastal flooding and erosion, and valuable recreational opportunities; to ensure that coastal uses are compatible with the capabilities of the system and do not unreasonably interfere with natural processes of erosion and sedimentation, and to encourage the restoration and enhancement of disturbed or modified beach systems; (D) to manage intertidal flats so as to preserve their value as a nutrient source and reservoir, a healthy shellfish habitat and a valuable feeding area for invertebrates, fish and shorebirds; to encourage the restoration and enhancement of degraded intertidal flats; to allow coastal uses that minimize change in the natural current flows, depth, slope, sedimentation, and nutrient storage functions and to disallow uses that substantially accelerate erosion or lead to significant despoliation of tidal flats; (E) to preserve tidal wetlands and to prevent the despoliation and destruction thereof in order to maintain their vital natural functions; to encourage the rehabilitation and restoration of degraded tidal wetlands and where feasible and environmentally acceptable, to encourage the creation of wetlands for the purposes of shellfish and finfish management, habitat creation and dredge spoil disposal; (F) to manage coastal hazard areas so as to ensure that development proceeds in such a manner that hazards to life and property are minimized and to promote nonstructural solutions to flood and erosion problems except in those instances where structural alternatives prove unavoidable and necessary to protect [inhabited structures constructed] any property developed as of January 1, 1995, infrastructural facilities or water dependent uses; (G) to promote, through existing state and local planning, development, promotional and regulatory programs, the use of existing developed shorefront areas for marine-related uses, including but not limited to, commercial and recreational fishing, boating and other water-dependent commercial, industrial and recreational uses; (H) to manage undeveloped islands in order to promote their use as critical habitats for those bird, plant and animal species which are indigenous to such islands or which are increasingly rare on the mainland; to maintain the value of undeveloped islands as a major source of recreational open space; and to disallow uses which will have significant adverse impacts on islands or their resource components; (I) to regulate shoreland use and development in a manner which minimizes adverse impacts upon adjacent coastal systems and resources; and (J) to maintain the natural relationship between eroding and depositional coastal landforms and to minimize the adverse impacts of erosion and sedimentation on coastal land uses through the promotion of nonstructural mitigation measures. Structural solutions are permissible when necessary and unavoidable for the protection of infrastructural facilities, cemetery or burial grounds, water-dependent uses, or [inhabited structures constructed] properties developed as of January 1, 1995, cemetery or burial grounds, and where there is no feasible, less environmentally damaging alternative and where all reasonable mitigation measures and techniques have been provided to minimize adverse environmental impacts.

Sec. 5. (NEW) (Effective October 1, 2013) For any order or decision of the Commissioner of the Department of Energy and Environmental Protection for which a hearing is not provided under the general statutes, any person who or municipality which is aggrieved by such order or decision may, within thirty days from the date such order or decision is sent, request a hearing before the commissioner pursuant to this section. The commissioner shall not grant any request for a hearing at any time thereafter. After such hearing, the commissioner shall consider the facts presented to him or her by the person or municipality, including any additional evidence, the rebuttal or other evidence, and shall then revise and resubmit the order or decision to the person or municipality or inform the person or municipality that the previous order or decision has been affirmed and remains in effect.

Sec. 6. Subsection (a) of section 22a-6b of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

(a) The Commissioner of Energy and Environmental Protection shall adopt regulations, in accordance with the provisions of chapter 54, to establish a schedule setting forth the amounts, or the ranges of amounts, or a method for calculating the amount of the civil penalties which may become due under this section. Such schedule or method may be amended from time to time in the same manner as for adoption provided any such regulations which become effective after July 1, 1993, shall only apply to violations which occur after said date. The civil penalties established for each violation shall be of such amount as to insure immediate and continued compliance with applicable laws, regulations, orders and permits, provided no such civil penalties shall be assessed until the date on which such civil penalties become due and payable pursuant to subdivisions (1) to (3), inclusive, of subsection (e) of this section. Such civil penalties shall not exceed the following amounts:

(1) For failure to file any registration, other than a registration for a general permit, for failure to file any plan, report or record, or any application for a permit, for failure to obtain any certification, for failure to display any registration, permit or order, or file any other information required pursuant to any provision of section 14-100b or 14-164c, subdivision (3) of subsection (b) of section 15-121, section 15-171, 15-172, 15-175, 22a-5, 22a-6, 22a-7, 22a-32, 22a-39 or 22a-42a, 22a-45a, chapter 441, sections 22a-134 to 22a-134d, inclusive, subsection (b) of section 22a-134p, section 22a-171, 22a-174, 22a-175, 22a-177, 22a-178, 22a-181, 22a-183, 22a-184, 22a-208, 22a-208a, 22a-209, 22a-213, 22a-220, 22a-231, 22a-245a, 22a-336, 22a-342, 22a-345, 22a-346, 22a-347, 22a-349a, 22a-354p, 22a-358, 22a-359, 22a-361, 22a-362, 22a-368, 22a-401 to 22a-405, inclusive, 22a-411, 22a-416, 22a-417, 22a-424 to 22a-433, inclusive, 22a-447, 22a-449, 22a-450, 22a-451, 22a-454, 22a-458, 22a-461, 22a-462 or 22a-471, or any regulation, order or permit adopted or issued thereunder by the commissioner, and for other violations of similar character as set forth in such schedule or schedules, no more than one thousand dollars for said violation and in addition no more than one hundred dollars for each day during which such violation continues;

(2) For deposit, placement, removal, disposal, discharge or emission of any material or substance or electromagnetic radiation or the causing of, engaging in or maintaining of any condition or activity in violation of any provision of section 14-100b or 14-164c, subdivision (3) of subsection (b) of section 15-121, section 15-171, 15-172, 15-175, 22a-5, 22a-6, 22a-7, 22a-32, 22a-39 or 22a-42a, 22a-45a, chapter 441, sections 22a-134 to 22a-134d, inclusive, section 22a-69 or 22a-74, subsection (b) of section 22a-134p, section 22a-162, 22a-171, 22a-174, 22a-175, 22a-177, 22a-178, 22a-181, 22a-183, 22a-184, 22a-190, 22a-208, 22a-208a, 22a-209, 22a-213, 22a-220, 22a-336, 22a-342, 22a-345, 22a-346, 22a-347, 22a-349a, 22a-354p, 22a-358, 22a-359, 22a-361, 22a-362, 22a-368, 22a-401 to 22a-405, inclusive, 22a-411, 22a-416, 22a-417, 22a-424 to 22a-433, inclusive, 22a-447, 22a-449, 22a-450, 22a-451, 22a-454, 22a-458, 22a-461, 22a-462 or 22a-471, or any regulation, order or permit adopted thereunder by the commissioner, and for other violations of similar character as set forth in such schedule or schedules, no more than twenty-five thousand dollars for said violation for each day during which such violation continues;

(3) For violation of the terms of any final order of the commissioner, except final orders under subsection (d) of this section and emergency orders and cease and desist orders as set forth in subdivision (4) of this subsection, for violation of the terms of any permit issued by the commissioner, and for other violations of similar character as set forth in such schedule or schedules, no more than twenty-five thousand dollars for said violation for each day during which such violation continues;

(4) For violation of any emergency order or cease and desist order of the commissioner, and for other violations of similar character as set forth in such schedule or schedules, no more than twenty-five thousand dollars for said violation for each day during which such violation continues;

(5) For failure to make an immediate report required pursuant to subdivision (3) of subsection (a) of section 22a-135, or a report required by the department pursuant to subsection (b) of section 22a-135, no more than twenty-five thousand dollars per violation per day;

(6) For violation of any provision of the state's hazardous waste program, no more than twenty-five thousand dollars per violation per day;

(7) For wilful violation of any condition imposed pursuant to section 26-313 which leads to the destruction of, or harm to, any rare, threatened or endangered species, no more than ten thousand dollars per violation per day;

(8) For violation of any provision of sections 22a-608 to 22a-611, inclusive, no more than the amount established by Section 325 of the Emergency Planning and Community Right-To-Know Act of 1986 (42 USC 11001 et seq.) for a violation of Section 302, 304 or 311 to 313, inclusive, of said act.

Sec. 7. Section 22a-5c of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2013):

(a) When an order issued by the Commissioner of Energy and Environmental Protection to any person pursuant to section 22a-6, 22a-6b, as amended by this act, 22a-7, 22a-108 or 22a-363f to correct, abate or penalize any violation of section 22a-32, 22a-92 or 22a-361 or any certificate or permit issued under section 22a-6, 22a-6b, 22a-7, 22a-32, 22a-92, as amended by this act, 22a-108, 22a-361 or 22a-363f becomes final, the commissioner shall cause a certified copy or notice of the final order to be filed on the land records in the town in which the land is located. Such certified copy or notice shall constitute a notice to the owner's heirs, successors and assigns. When the order is complied with or revoked, the commissioner shall issue a certificate showing such compliance or revocation, which certificate the commissioner shall cause to be recorded on the land records in the town in which the order was previously recorded. A certified copy of the certificate showing such compliance or revocation shall be sent to the owner at the owner's last-known post office address.

(b) No order issued by the Commissioner of Energy and Environmental Protection shall continue in force for a longer period than fifteen years after the order has been issued unless the commissioner causes to be filed on the land records a notice that such order has not been complied with. Each such order, after the expiration of the fifteen-year period, shall be invalid and discharged as a matter of law. With respect to any notice that an order has not been complied with, such notice shall continue the validity of the order for a period of three years from the date on which such notice was recorded, after which time such order shall be invalid and discharged as a matter of law.

Statement of Purpose:

(1) To allow certain shoreline structures, fill, obstructions or encroachments in place prior to January 1, 1995, to be maintained and repaired as a matter of right and to make other changes to the certificate of permission review process; (2) to authorize property owners and municipalities to fortify shoreline property in the event of a hurricane warning; (3) to allow any person or municipality aggrieved by a decision of the Commissioner of Energy and Environmental Protection to request a hearing; (4) to prohibit civil penalties due for violations issued by the Commissioner of Energy and Environmental Protection from becoming due and payable until after a hearing is conducted; and (5) to provide that no order issued by the Commissioner of Energy and Environmental Protection shall continue in force for longer than fifteen years, with a possible three-year extension.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]

S.B. 460