August 4, 2004
LAKE AND RESERVOIR CLASSIFICATION AND REGULATION
By: Saul Spigel, Chief Analyst
You asked (1) who classifies water bodies such as lakes or reservoirs, what criteria they use, and how a classification is changed; (2) who regulates lakes and reservoirs and what are the consequences of regulation, particularly tax consequences; and (3) if the Department of Public Health regulates Lake Pocopotaug as a reservoir.
As far as we can determine no state agency classifies water bodies; names (e.g., Crystal Lake, Horse Pond, Hogback Reservoir) probably attach to these bodies by tradition or, in the case of manmade bodies, by the entity that created it. The Department of Public Health (DPH) classifies watershed lands, that is land adjacent to or near drinking water supply sources such as reservoirs and lakes.
DPH and the Department of Environmental Protection (DEP) are the principal state agencies that regulate lakes, reservoirs, and other inland surface water bodies (The Department of Public Utility Control has some regulatory authority over the sale of water company lands, which may involve property adjacent to or near a lake or reservoir, and water system construction by small water companies, which typically involve wells, not surface water.) DEP regulations generally deal with preventing water pollution and flood in natural and manmade inland waters, including lakes and ponds, marshes, rivers and brooks, wells and springs, and drainage systems. They cover wastewater discharges, pesticide applications, construction, flood control, and water diversions. They also govern boating and fishing. DPH regulations deal with the quality of present and future drinking water supplies. They govern such matters as water supply planning, standards for and testing of drinking water supplies, watershed sanitation, use and disposition of watershed land, and penalties for violations.
DPH does not regulate Lake Pocopotaug in any way. This is because the lake is not a source of drinking water.
REGULATING LAKES AND RESERVOIRS
The agencies that regulate lakes and reservoirs do not distinguish between them in their regulatory activities. DEP regulations cover all types inland waters—lakes, reservoirs, ponds, rivers, marshes, and wetlands. DPH regulations govern drinking water supplies, which cover lakes and reservoirs as well as wells. The consequences of these regulations depend on a water body's use, not its type.
DEP water regulations generally deal with preventing water pollution and flood in all types of inland waters. They cover wastewater discharges, pesticide applications, construction, flood control, and water diversions. Other DEP regulations govern boating and fishing.
Wastewater Discharges. The Surface Water Discharge Permit Program, also known as the National Pollutant Discharge Elimination System (NPDES) under federal law, regulates discharges into surface waters (either directly or through municipal storm sewer drainage systems, or through other drainage systems such as wetlands or swales). In making a decision on a permit application, DEP must determine that the proposed discharges will not pollute state waters. Its staff reviews the potential for (1) any adverse effects on existing and designated uses of state waters, (2) any interference with or adverse effects on the operation of a sewage treatment plant, and (3) any systems and methods proposed to counteract adverse effects and minimize the discharge of pollutants. (Conn. Agency Regs. § 22a-430-1 to –7).
401 Water Quality Certification. The 401 Water Quality Certification program regulates anyone applying for a federal license or permit for an activity that may result in a discharge into navigable state waters, including wetlands, watercourses, and natural and man-made ponds. Applicants must obtain DEP certification that the discharge is consistent with the federal Clean Water Act and Connecticut water quality standards. Any conditions contained in a 401 Water Quality Certification become conditions of the federal permit or license. In making a decision on a certificate, DEP considers the effects of proposed discharges on ground and surface water quality and existing and designated uses of state waters (33 USC 1314, section 401).
Aquatic Pesticide Application. This permit program regulates the use of any chemicals that an applicant proposes introducing into state waters, public or private, to control aquatic organisms. These organisms are usually water weeds or algae, but could include mosquitoes or unwanted fish. Applications are evaluated for the potential of causing unreasonable adverse effects to people or the environment. Only chemicals registered for aquatic sites may be used (Conn. Agency Regs. § 22a-66z-1, 22a-66a-1(e)).
Water Diversion. This program regulates activities which cause, allow, or result in the withdrawal from, or the alteration, modification, or diminution of, the instantaneous flow of the waters of the state. In general, a permit is required to conduct activities which result in the alteration of surface water flows, and withdrawals of surface and ground water exceeding 50,000 gallons in any 24-hour period. When making a decision on a water diversion permit application, DEP must consider, among other factors, the environmental effects of the proposed diversion and whether it (1) is necessary, (2) is consistent with long-range water resource management, (3) is consistent with the State Plan of Conservation and Development, and (4) will not impair proper management and use of the state's water resources. Diversions maintained before 1982 do not need a permit but must be registered with DEP (Conn. Agency Regs. § 22a-372-1 and 377(b)(c)).
Dam Construction. This program regulates the construction, alteration, repair, and removal of dams, dikes, reservoirs, and similar structures, which could endanger life or property if they broke. In making a decision on a dam construction permit, DEP must consider the impact of the proposed construction work on the environment, the safety of people and property, inland wetlands and watercourses, and the need for a fishway (CGS §§ 22a-401 to –411).
Inland Wetlands and Watercourses. This program regulates activities state agencies undertake in or that affect inland wetlands or watercourses. In making a decision on an agency's permit application, DEP must consider, among other things, the impact of the proposed
activities on the environment including wildlife and fisheries habitats, flooding and flood hazards, and whether there are alternatives to the proposed action that will cause less environmental impact (Conn. Agency Regs. § 22a-39-1 to –15).
Boating and Fishing. DEP boating regulations are designed to protect boaters' safety. They address operator age requirements; speed and use of motors in some lakes and ponds; boating hazards; reckless operation; and waterskiing, diving, and other forms of water recreation. Fishing rules dictate when fishing can occur and what species may be taken (Conn. Agency Regs. § 15-121-A1 to D2).
DPH is responsible for administering state and federal drinking water regulations. These govern such matters as water supply planning, standards for and testing of water supplies, watershed sanitation, use and disposition of watershed land, and penalties for violations. They apply to surface and groundwater.
Water Supply Planning. Water companies serving 1,000 or more people or 250 or more consumers must submit water supply plans to DPH that evaluate the supply needs in its area and propose a strategy to meet those needs. These detailed plans must include a list and description of the company's water supply sources, an analysis of projected demand, and identification of supplies that it may abandon (Conn. Agency Regs. § 25-32d-1 to-6).
The public water companies in public water supply management areas designated by the DPH commissioner and regional planners in the area must prepare coordinated water system plans. Each plan must include the water system plan of each public water system in the management area and an areawide supplement that addresses water system concerns pertaining to the management area that are not covered in each company's individual system plan (Conn. Agency Regs. § 25-33h-1).
Water Supply Standards. DPH sets standards for permissible levels of organic and inorganic materials in public drinking water supplies, requirements for monitoring and reporting on chemical levels, and treatment techniques (Conn. Agency Regs. § 19-13-B102). A different set of regulations cover testing private drinking water supplies, which can include surface waters (Conn. Agency Regs. § 19-13-B101).
Watershed Sanitation. Environmental health regulations prohibit polluting watershed lands and locating sewage disposal systems near drinking water supply sources, including reservoirs (Conn. Agency Regs. § 19-13-B32).
Water Company Lands. DPH establishes criteria for classifying lands owned by water companies. The classifications, classes I, II, and III, are based on the land's proximity to surface and ground water supply sources. Based on these criteria, DPH regulations govern how water companies may use this land and dispose of it and the standards for DPH's review of a company's proposals in this area (Conn. Agency Regs. § 25-37c-1 to-2; 25-37d-1 to –9).
Penalties. Large water companies (serving over 10,000 people) face civil penalties of up to $5,000 per day for failure to comply with water quality standards, monitoring and reporting, and water supply planning laws (Conn. Agency Regs. § 25-32e-1).
Consequences of Regulation
The effects of state regulation on a body or surface water depend on its use (recreation, drinking water) not its type (lake or reservoir) and, in the case of drinking water supply sources, the size and type (public or private) of the water company that uses it. The most significant regulatory consequence appears to be the requirement that a water company receive DPH approval to dispose, or change the use, of land adjacent to or near a drinking water source. Other regulations, for example DEP's 401 water quality certification, may affect construction near a lake or reservoir that is not used for drinking water. And, local land use and wetlands regulations, although not covered in this report, could also affect construction near lakes and reservoirs.
Tax Consequences. Tax issues concerning lakes and reservoirs are part of complex riparian and littoral rights law. The tax consequences that attach to surface water depend on whether it is publicly or privately owned more than how it is classified or used. For example, a municipal water company reservoir is probably tax-exempt public property while a private water company's reservoir may be taxable. The same applies to public or private recreational water bodies.
Typically, taxing authorities assess a property's market value in determining its tax liability. In the case of surface water bodies, they would assess the value of the entire property on which the water is located, including the land surrounding it. Improved land surrounding a water body often has a higher value, and owners consequently pay higher taxes on it, than land further away from the water.
Unimproved land surrounding a lake or reservoir could be classified as forest or open space and consequently eligible for the state's 490 tax relief program. In this program land classified as farm, forest, or open space is assessed at its current use value rather than its market value, which is often much higher. Individual towns establish the assessment rates for such land following Agriculture Department guidelines (CGS § 12-2b). Several private water companies take advantage of this program for their watershed lands (see OLR Report 2004-R-0215).