Substitute House Bill No. 5498
Substitute House Bill No. 5498
PUBLIC ACT NO. 98-228
AN ACT CONCERNING REGULATION OF FOREST PRACTICES.
Be it enacted by the Senate and House of
Representatives in General Assembly convened:
Section 1. Section 23-65k of the general
statutes is repealed and the following is
substituted in lieu thereof:
(a) ANY OF THE TOWNS OF BERLIN, BROOKFIELD,
CHESTER, DEEP RIVER, EAST HADDAM, ESSEX,
GLASTONBURY, GRANBY, HADDAM, KENT, LYME, NEWTOWN,
OLD LYME, OLD SAYBROOK, REDDING, STAFFORD, SOMERS,
WARREN, WASHINGTON OR WILLINGTON MAY, ACTING
THROUGH ITS LEGISLATIVE BODY, AUTHORIZE ITS INLAND
WETLANDS AGENCY AS DEFINED IN SECTION 22a-38, TO
ADOPT SUCH REGULATIONS, CONSISTENT WITH THE
REGULATIONS ADOPTED BY THE COMMISSIONER PURSUANT
TO SECTION 23-65j, AS ARE NECESSARY TO PROTECT THE
FOREST LAND WITHIN ITS JURISDICTION, EXCEPT FOR
STATE-OWNED FOREST LAND MANAGED BY THE DEPARTMENT
OF ENVIRONMENTAL PROTECTION. FOR PURPOSES OF THIS
SECTION, THE INLAND WETLANDS AGENCY SHALL SERVE AS
THE SOLE MUNICIPAL AGENT FOR REGULATION OF FOREST
PRACTICES. ANY MUNICIPALITY NAMED IN THIS
SUBSECTION SHALL HAVE ONE YEAR FROM THE EFFECTIVE
DATE OF REGULATIONS ADOPTED BY THE COMMISSIONER
FOR THE REGULATION OF FOREST PRACTICES TO COMPLY
WITH THE TERMS OF THIS SECTION. NO MUNICIPALITY
WHICH REGULATES FOREST PRACTICES PURSUANT TO THE
AUTHORITY OF THIS SECTION SHALL REJECT ANY
APPLICATION WITHOUT HAVING SUCH REJECTION REVIEWED
BY A FORESTER CERTIFIED BY THE DEPARTMENT OF
ENVIRONMENTAL PROTECTION RETAINED BY THE AGENCY
FOR THAT PURPOSE. UPON WRITTEN REQUEST OF THE
APPLICANT, A FORESTER CERTIFIED BY THE DEPARTMENT
SHALL REVIEW AND MAKE RECOMMENDATIONS TO THE
INLAND WETLANDS AGENCY ON ANY APPLICATION TO
CONDUCT FOREST PRACTICES. THE COSTS ASSOCIATED
WITH ANY REVIEW PROVIDED FOR IN THIS SECTION SHALL
BE BORNE BY THE APPLICANT PROVIDED IN NO EVENT
SHALL THE TOTAL OF FEES AND COSTS PAID BY THE
APPLICANT IN CONNECTION WITH AN APPLICATION TO
CONDUCT FOREST PRACTICES EXCEED THE STANDARD FEE
WHICH WOULD BE CHARGED BY THE DEPARTMENT FOR A
SIMILAR APPLICATION.
(b) ANY MUNICIPALITY NOT NAMED IN SUBSECTION
(a) OF THIS SECTION WHICH HAS, AS OF JANUARY 1,
1998, A PROGRAM OF REGULATION FOR FOREST PRACTICES
MAY APPLY TO THE COMMISSIONER FOR APPROVAL TO
ADMINISTER A MUNICIPAL PROGRAM OF REGULATION IN
ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.
THE COMMISSIONER MAY APPROVE SUCH PROGRAM IF HE
FINDS THAT SUCH PROGRAM WAS IN EXISTENCE ON
JANUARY 1, 1998, AND WAS AT THAT TIME IN
COMPLIANCE WITH THE STANDARDS PROVIDED BY THE
CONNECTICUT RESOURCE CONSERVATION AND DEVELOPMENT
FORESTRY COMMITTEE.
(c) AT LEAST ONE MEMBER OR STAFF MEMBER OF
THE INLAND WETLANDS AGENCY SHALL COMPLETE A
TRAINING PROGRAM ON FOREST PRACTICES WHICH SHALL
BE DEVELOPED BY THE COMMISSIONER. THE COMMISSIONER
SHALL ANNUALLY MAKE SUCH PROGRAM AVAILABLE TO ONE
PERSON FROM EACH TOWN WITHOUT COST TO THAT PERSON
OR THE TOWN. EACH INLAND WETLANDS AGENCY
AUTHORIZED TO REGULATE FOREST PRACTICES SHALL
PRESENT A SUMMARY OF THE TRAINING PROGRAM TO THE
MEMBERS OF THE AGENCY AT LEAST ONCE ANNUALLY.
FAILURE TO HAVE THE TRAINING REQUIRED UNDER THIS
SUBSECTION SHALL NOT AFFECT THE VALIDITY OF ANY
ACTION OF THE AGENCY.
(d) [Municipalities may regulate forest
practices in a manner consistent with the purposes
of sections 23-65f to 23-65o, inclusive.] Any
municipal ordinance or regulation concerning
[commercial forest practices which is not in
effect on the effective date of regulations
adopted pursuant to section 23-65j] FOREST
PRACTICES, ADOPTED IN ACCORDANCE WITH SUBSECTION
(a) OF THIS SECTION, shall not be effective unless
such ordinance or regulation has been submitted to
the commissioner for approval, and the
commissioner has approved said ordinance or
regulation as consistent with the purposes of
sections 23-65f to 23-65o, inclusive, and
regulations adopted thereunder AND FURTHER FINDS
THAT THE MUNICIPALITY SUBMITTING SUCH REGULATIONS
HAD IN EFFECT ON JANUARY 1, 1998, A PROGRAM OF
REGULATION FOR FOREST PRACTICES WHICH WAS IN
COMPLIANCE WITH THE STANDARDS PROVIDED BY THE
CONNECTICUT RESOURCE CONSERVATION AND DEVELOPMENT
FORESTRY COMMITTEE. No municipal ordinance or
regulation governing commercial forest practices
which is in effect on the effective date of
regulations adopted pursuant to section 23-65j
shall be valid after the expiration of one year
following the effective date of such department
regulations unless such ordinance or regulation
has been submitted to the commissioner for
approval, and the commissioner has approved such
ordinance or regulation as consistent with the
purposes of sections 23-65f to 23-65o, inclusive,
AS AMENDED BY THIS ACT, and regulations adopted
thereunder. The commissioner shall provide written
notification to the municipality of the approval
of a municipal ordinance or regulation or the
reasons such ordinance or regulation is not
approved. Such written notification shall be
issued within sixty days of receipt by the
commissioner of the ordinance or regulation
adopted by the municipality. THE COMMISSIONER MAY
REQUIRE MODIFICATIONS TO SUCH MUNICIPAL ORDINANCES
OR REGULATIONS WITHIN ONE HUNDRED EIGHTY DAYS OF
ANY MODIFICATIONS TO REGULATIONS ADOPTED BY THE
COMMISSIONER UNDER SECTION 23-65j.
(e) ANY FORM USED BY A MUNICIPALITY FOR THE
REGISTRATION AND APPROVAL OF A FOREST PRACTICE
SHALL BE CONSISTENT WITH FORMS APPROVED BY THE
COMMISSIONER.
(f) AN INLAND WETLANDS AGENCY AUTHORIZED
UNDER SUBSECTION (a) OR (b) OF THIS SECTION MAY
REQUIRE A REASONABLE FILING FEE TO BE DEPOSITED
WITH THE AGENCY FOR ANY APPLICATION TO CONDUCT
FOREST PRACTICES. THE AMOUNT OF SUCH FEE SHALL BE
SUFFICIENT TO COVER THE REASONABLE COST OF
REVIEWING AND ACTING ON APPLICATIONS, INCLUDING,
BUT NOT LIMITED TO, THE COST OF CERTIFIED
MAILINGS, PUBLICATIONS OF NOTICES AND DECISIONS
AND MONITORING COMPLIANCE WITH REGISTRATION
CONDITIONS OR AGENCY ORDERS PROVIDED SUCH FEE IS
NO GREATER THAN THE COMPARABLE FEE CHARGED BY THE
COMMISSIONER.
(g) EACH INLAND WETLANDS AGENCY AUTHORIZED TO
REGULATE FOREST PRACTICES SHALL ANNUALLY REPORT TO
THE COMMISSIONER INFORMATION ON REGISTRATIONS,
ORDERS AND OTHER ACTIONS OF SUCH AGENCY ON A FORM
FURNISHED BY THE COMMISSIONER. SUCH INFORMATION
SHALL INCLUDE, BUT NOT BE LIMITED TO, THE
FOLLOWING: (1) REGISTRATIONS ISSUED; (2)
REGISTRATIONS DENIED; AND (3) ENFORCEMENT NOTICES
AND ORDERS.
(h) THE COMMISSIONER SHALL REGULATE FOREST
PRACTICES IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 23-65j WITHIN A MUNICIPALITY WHICH DOES
NOT REGULATE FOREST PRACTICES IN ACCORDANCE WITH
THIS SECTION.
(i) ON OR AFTER THE EFFECTIVE DATE OF THE
MUNICIPAL REGULATIONS ADOPTED UNDER SUBSECTION (a)
OF THIS SECTION, NO FOREST PRACTICE SHALL BE
CONDUCTED UPON ANY FOREST LAND WITHIN THE
MUNICIPALITY EXCEPT IN ACCORDANCE WITH SUCH
REGULATIONS.
(j) IF A FOREST PRACTICE IS BEING CONDUCTED
ON A PARCEL OF REAL PROPERTY WHICH EXTENDS INTO
TWO OR MORE CONTIGUOUS TOWNS, THE COMMISSIONER
SHALL HAVE SOLE JURISDICTION OVER SUCH PRACTICE
UNLESS EACH SUCH TOWN HAS A PROGRAM OF REGULATION
APPROVED UNDER THIS SECTION. IF THE COMMISSIONER
DETERMINES THAT THERE IS ANY CONFLICT BETWEEN SUCH
PROGRAMS, THE STATE REGULATIONS SHALL GOVERN SUCH
PRACTICE.
Sec. 2. Section 23-65l of the general
statutes is repealed and the following is
substituted in lieu thereof:
If the Commissioner of Environmental
Protection OR, IN A MUNICIPALITY IN WHICH THERE IS
AN INLAND WETLANDS AGENCY AUTHORIZED TO REGULATE
FOREST PRACTICES, SUCH AGENCY, finds that any
person has violated any provision of sections
23-65f to 23-65o, inclusive, AS AMENDED BY THIS
ACT, [he] THE COMMISSIONER OR THE AGENCY, AS THE
CASE MAY BE, may issue an order to such person to
take the necessary steps to comply with said
sections. Each order to comply issued under this
section shall be sent by certified mail, return
receipt requested, to the subject of such order
and shall be deemed issued upon deposit in the
mail. Any person who is aggrieved by such order
may, within thirty days from the date such order
or decision is issued, request a hearing before
the commissioner OR THE AGENCY, AS THE CASE MAY
BE. The commissioner OR THE AGENCY shall not grant
any request for a hearing at any time thereafter.
After such hearing, the commissioner OR THE AGENCY
shall consider the facts presented to [him] THE
COMMISSIONER OR THE AGENCY by such person, shall
consider the rebuttal or other evidence presented
to or by [him] THE COMMISSIONER OR THE AGENCY, and
shall then revise or resubmit the order to the
person, or inform the person that the previous
order has been disapproved or that it has been
reaffirmed and remains in effect. The commissioner
OR THE AGENCY may, after the hearing provided for
in this section, or any time after the issuance of
his order, modify such order by agreement or
extend the time schedule therefor if [he] THE
COMMISSIONER OR THE AGENCY deems such modification
or extension advisable or necessary, and any such
modification or extension shall be deemed to be a
revision of an existing order and shall not
constitute a new order. There shall be no hearing
subsequent to or any appeal from any such
modification or extension.
Sec. 3. Section 23-65m of the general
statutes is repealed and the following is
substituted in lieu thereof:
If any person fails to comply with sections
23-65f to 23-65o, inclusive, AS AMENDED BY THIS
ACT, including any regulation, certificate,
authorization or order adopted or issued pursuant
to said sections, the Commissioner of
Environmental Protection may request the Attorney
General to bring, OR AN INLAND WETLANDS AGENCY
AUTHORIZED TO REGULATE FOREST PRACTICES MAY BRING,
an action in the superior court for the judicial
district of Hartford-New Britain at Hartford* to
enjoin such person to comply fully with said
sections, including any regulation, certificate,
authorization, or order adopted or issued
thereunder, or any part thereof. All actions
brought by the Attorney General OR AN INLAND
WETLANDS AGENCY pursuant to this section shall
have precedence in the order of trial as provided
in section 52-191.
Sec. 4. Section 23-65n of the general
statutes is repealed and the following is
substituted in lieu thereof:
Any person who violates any provision of
sections 23-65f to 23-65o, inclusive, AS AMENDED
BY THIS ACT, shall be assessed a civil penalty not
to exceed five thousand dollars, to be fixed by
the court, for each offense. Each violation shall
be a separate and distinct offense and, in the
case of a continuing violation, each day's
continuance thereof shall be deemed to be a
separate and distinct offense. The Attorney
General, upon complaint of the Commissioner of
Environmental Protection, OR AN INLAND WETLANDS
AGENCY AUTHORIZED TO REGULATE FOREST PRACTICES,
shall institute a civil action to recover such
penalty.
Sec. 5. (NEW) (a) The Commissioner of
Environmental Protection may revoke the authority
of a municipality to regulate forest practices
pursuant to section 23-65k of the general
statutes, as amended by this act, upon notice from
a municipality that it intends to abandon such
authority or upon determination after a hearing
that such municipality has failed to perform its
duties under said section 23-65k. Prior to the
hearing on revocation, the commissioner shall send
a notice to the inland wetlands agency, by
certified mail, return receipt requested, asking
such agency to show cause, not later than thirty
days after receipt of such notice, why such
authority should not be revoked. A copy of the
show cause notice shall be sent to the chief
executive officer of the municipality that
authorized the agency. The commissioner shall send
a notice to the inland wetlands agency, by
certified mail, return receipt requested, stating
the reasons for the revocation and any provisions
necessary for reinstatement, in accordance with
subsection (c) of this section. Any municipality
aggrieved by a decision of the commissioner under
this section to revoke its authority under this
section may appeal therefrom in accordance with
the provisions of section 4-183 of the general
statutes. The commissioner shall have jurisdiction
over the forest practices in any municipality
whose authority to regulate such forest practices
has been revoked. Any fees that would have been
paid to such municipality if such authority had
been retained shall be paid to the state.
(b) If the commissioner revokes the authority
of a municipality to regulate forest practices,
the municipality may apply to the commissioner for
reinstatement of such authority after a period of
one year from revocation. The commissioner may
grant reinstatement if the municipality
demonstrates that it is capable for fulfilling its
duties under section 23-65k of the general
statutes, as amended by this act.
(c) The commissioner shall cause to be
published notice of the revocation or
reinstatement of the authority of a municipality
to regulate forest practices in a newspaper of
general circulation in the area of such
municipality.
(d) The commissioner may issue an order or
request to the Attorney General to bring an action
in the superior court for the judicial district of
Hartford-New Britain at Hartford to enforce any
order, registration, ordinance or regulation
adopted under chapter 451a of the general statutes
if the municipality fails to do so on a timely
basis.
Sec. 6. (NEW) The Commissioner of
Environmental Protection or any person aggrieved
by any order, registration, ordinance, regulation
or action made by a municipality under sections
23-65f to 23-65o, inclusive, of the general
statutes, as amended by this act, may appeal such
regulation, order, decision or action in
accordance with section 4-183 of the general
statutes. Notice of such appeal shall be served
upon the inland wetlands agency and the
commissioner. The commissioner may appear as a
party to any action brought by any other person
not later than thirty days from the date such
appeal is returned to the court.
Sec. 7. Section 23-65f of the general
statutes is repealed and the following is
substituted in lieu thereof:
As used in sections 23-65g to 23-65o:
(1) "Commercial forest practices" means any
forest practices performed by a person other than
the owner of the subject forest land for
remuneration, or which, when performed, yield
commercial forest products;
(2) "Commercial forest products" means wood
products harvested from a tract of forest land in
excess of fifty cords or one hundred fifty tons or
twenty-five thousand board feet, whichever measure
is appropriate, in any twelve-month period;
(3) "Commercial forest practitioner" means
any person who engages in commercial forest
practices;
(4) "Commissioner" means the Commissioner of
Environmental Protection;
(5) "Department" means the Department of
Environmental Protection;
(6) "Forest land" means that portion of a
parcel of land which constitutes a total of at
least one contiguous acre on which there is no
structure, maintained landscape area, accessway or
other improvement and which is (A) occupied in
random distribution by trees having a minimum
diameter of three inches as measured from a point
on the trunk which is four and one-half feet above
the ground such trees comprising at least seven
and one-half square feet of basal area and the
crowns of such trees occupying no less than
fifteen per cent of the total area; or (B) which
is planted with at least five hundred trees per
acre and is not maintained for Christmas tree or
nursery stock production;
(7) "Forest practice" means any activity
which may alter the physical or vegetative
characteristics of any forest land [including, but
not limited to, any activity involving or
associated with the cutting of trees or harvesting
of forest products] WHICH IS UNDERTAKEN IN
CONNECTION WITH THE HARVEST OF COMMERCIAL FOREST
PRODUCTS UNLESS SUCH HARVEST IS UNDERTAKEN
PURSUANT TO THE CONVERSION OF FOREST LAND TO OTHER
USES AND SUCH CONVERSION HAS BEEN APPROVED BY THE
PLANNING COMMISSION, ZONING COMMISSION, OR
COMBINED PLANNING AND ZONING COMMISSION AND, IF
APPLICABLE, THE INLAND WETLANDS AGENCY OF THE
MUNICIPALITY WITHIN WHICH SUCH LAND IS LOCATED;
(8) "Forest practitioner" means any person
who engages in forest practices;
(9) "Person" means any individual, firm,
partnership, association, corporation, limited
liability company, company, organization or legal
entity of any kind, including any political
subdivision of the state and including any state
agency;
(10) "Tree" means a woody perennial plant
usually having one self-supporting stem or trunk
which has a definitely formed crown and is
normally expected to attain a mature height of
over twenty feet.
Sec. 8. Subsection (f) of section 23-65 of
the general statutes is repealed and the following
is substituted in lieu thereof:
(f) Any person, firm or corporation, other
than a tree warden or his deputy, who desires the
cutting or removal, in whole or in part, of any
tree or shrub or part thereof within the limits of
any public road or grounds, may apply in writing
to the town tree warden, the borough tree warden
or the Commissioner of Transportation or other
authority having jurisdiction thereof for a permit
so to do. Upon receipt of such permit, but not
before, he may proceed with such cutting or
removal. Before granting or denying such permit,
such authority may hold a public hearing as
provided in section 23-59, and when the applicant
is a public utility corporation, the party
aggrieved by such decision may, within ten days,
appeal therefrom to the Department of Public
Utility Control, which shall have the power to
review, confirm, change or set aside the decision
appealed from and its decision shall be final.
This shall be in addition to the powers granted to
it under section 16-234, provided, if an
application for such permit has been made to
either a tree warden or the Commissioner of
Transportation or other authority and denied by
him, an application for a permit for the same
relief shall not be made to any other such
authority. UPON ANY APPROVAL OF SUCH A PERMIT BY
THE COMMISSIONER OF TRANSPORTATION, THE PERMITTEE
SHALL NOTIFY THE TREE WARDEN FOR THE TOWN IN WHICH
THE TREE IS LOCATED PRIOR TO CUTTING ANY SUCH
TREE.
Approved June 8, 1998