File No. 190

Senate, March 30, 2010

The Committee on Environment reported through SEN. MEYER of the 12th Dist., Chairperson of the Committee on the part of the Senate, that the substitute bill ought to pass.

AN ACT CONCERNING THE PRESERVATION OF NATURAL VEGETATION NEAR WETLANDS AND WATERCOURSES AND CERTAIN ENHANCEMENTS TO THE INLAND WETLANDS AND WATERCOURSES ACT.

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

Section 1. Section 22a-38 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

As used in sections 22a-36 to 22a-45a, inclusive, as amended by this act, and section 3 of this act:

(1) "Commissioner" means the Commissioner of Environmental Protection;

(2) "Person" means any person, firm, partnership, association, corporation, limited liability company, company, organization or legal entity of any kind, including municipal corporations, governmental agencies or subdivisions thereof;

(3) "Municipality" means any town, consolidated town and city, consolidated town and borough, city and borough;

(4) "Inland wetlands agency" means a municipal board or commission established pursuant to and acting under section 22a-42, as amended by this act;

(5) "Soil scientist" means an individual duly qualified in accordance with standards set by the federal Office of Personnel Management;

(6) "Material" means any substance, solid or liquid, organic or inorganic, including, but not limited to soil, sediment, aggregate, land, gravel, clay, bog, mud, debris, sand, refuse or waste;

(7) "Waste" means sewage or any substance, liquid, gaseous, solid or radioactive, which may pollute or tend to pollute any of the waters of the state;

(8) "Pollution" means harmful thermal effect or the contamination or rendering unclean or impure of any waters of the state by reason of any waste or other materials discharged or deposited therein by any public or private sewer or otherwise so as directly or indirectly to come in contact with any waters;

(9) "Rendering unclean or impure" means any alteration of the physical, chemical or biological properties of any of the waters of the state, including, but not limited to change in odor, color, turbidity or taste;

(10) "Discharge" means the emission of any water, substance or material into waters of the state whether or not such substance causes pollution;

(11) "Remove" includes, but shall not be limited to drain, excavate, mine, dig, dredge, suck, bulldoze, dragline or blast;

(12) "Deposit" includes, but shall not be limited to, fill, grade, dump, place, discharge or emit;

(13) "Regulated activity" means any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses, but shall not include the specified activities in section 22a-40, as amended by this act;

(14) "License" means the whole or any part of any permit, certificate of approval or similar form of permission which may be required of any person by the provisions of sections 22a-36 to 22a-45a, inclusive;

(15) "Wetlands" means land, including submerged land, not regulated pursuant to sections 22a-28 to 22a-35, inclusive, which consists of any of the soil types designated as poorly drained, very poorly drained, alluvial, and floodplain by the National Cooperative Soils Survey, as may be amended from time to time, of the Natural Resources Conservation Service of the United States Department of Agriculture;

(16) "Watercourses" means rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs and all other bodies of water, natural or artificial, vernal or intermittent, public or private, which are contained within, flow through or border upon this state or any portion thereof, not regulated pursuant to sections 22a-28 to 22a-35, inclusive. Intermittent watercourses shall be delineated by a defined permanent channel and bank and the occurrence of two or more of the following characteristics: (A) Evidence of scour or deposits of recent alluvium or detritus, (B) the presence of standing or flowing water for a duration longer than a particular storm incident, and (C) the presence of hydrophytic vegetation;

(17) "Natural vegetation" means naturally occurring shrubs, trees or other plants, but does not include lawns or manicured grass areas;

[(17)] (18) "Feasible" means able to be constructed or implemented consistent with sound engineering principles; and

[(18)] (19) "Prudent" means economically and otherwise reasonable in light of the social benefits to be derived from the proposed regulated activity provided cost may be considered in deciding what is prudent and further provided a mere showing of expense will not necessarily mean an alternative is imprudent.

Sec. 2. Subsection (a) of section 22a-40 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right:

(1) Grazing, farming, as described in section 1-1, nurseries, gardening and harvesting of crops and farm ponds of three acres or less essential to the farming operation, and activities conducted by, or under the authority of, the Department of Environmental Protection for the purposes of wetland or watercourse restoration or enhancement or mosquito control. The provisions of this subdivision shall not be construed to include road construction or the erection of buildings not directly related to the farming operation, relocation of watercourses with continual flow, filling or reclamation of wetlands or watercourses with continual flow, clear cutting of timber except for the expansion of agricultural crop land, the mining of top soil, peat, sand, gravel or similar material from wetlands or watercourses for the purposes of sale;

(2) A residential home [(i)] (A) for which a building permit has been issued, or [(ii)] (B) on a subdivision lot, provided the permit has been issued or the subdivision has been approved by a municipal planning, zoning or planning and zoning commission as of the effective date of promulgation of the municipal regulations pursuant to subsection (b) of section 22a-42a or as of July 1, 1974, whichever is earlier, and further provided no residential home shall be permitted as of right pursuant to this subdivision unless the permit was obtained on or before July 1, 1987;

(3) Boat anchorage or mooring;

(4) Uses incidental to the enjoyment and maintenance of residential property, such property defined as equal to or smaller than the largest minimum residential lot site permitted anywhere in the municipality, provided in any town, where there are no zoning regulations establishing minimum residential lot sites, the largest minimum lot site shall be two acres. Such incidental uses shall include maintenance of existing structures and landscaping but shall not include removal or deposition of significant amounts of material from or onto a wetland or watercourse or diversion or alteration of a watercourse;

(5) Construction and operation, by water companies as defined in section 16-1 or by municipal water supply systems as provided for in chapter 102, of dams, reservoirs and other facilities necessary to the impounding, storage and withdrawal of water in connection with public water supplies except as provided in sections 22a-401 and 22a-403; and

(6) Maintenance relating to any drainage pipe which existed before the effective date of any municipal regulations adopted pursuant to section 22a-42a, as amended by this act, or July 1, 1974, whichever is earlier, provided such pipe is on property which is zoned as residential but which does not contain hydrophytic vegetation. For purposes of this subdivision, "maintenance" means the removal of accumulated leaves, soil, and other debris whether by hand or machine, while the pipe remains in place.

Sec. 3. (NEW) (Effective October 1, 2010) (a) Except as provided in subsection (b) of this section, when considering an application for a proposed regulated activity, a municipal inland wetlands agency may prohibit the destruction of natural vegetation within (1) one hundred feet of a wetlands or watercourse, or (2) the distance around the wetlands or watercourse regulated by the municipality pursuant to subsection (f) of section 22a-42a of the general statutes if such distance is less than one hundred feet from such wetlands or watercourse.

(b) A municipal inland wetlands agency may allow the removal of natural vegetation in connection with a proposed regulated activity if (1) the applicant can demonstrate that the removal will have no likely impact or effect on the soil and water characteristics of such wetlands or watercourse, or (2) there is no feasible or prudent alternative to the removal, provided such proposed activity meets all other permitting requirements and applicable provisions of chapter 440 of the general statutes.

(c) The provisions of this section shall not apply to construction activities that are ancillary to existing residential uses, including, but not limited to, the construction of structures such as decks, outbuildings, fences or walkways. Any such construction activities shall be subject to all other permitting requirements and applicable provisions of chapter 440 of the general statutes and any natural vegetation in proximity to such construction activities shall be protected or restored to the maximum extent practicable.

(d) The as of right uses specified in section 22a-40 of the general statutes, as amended by this act, shall be permitted in areas of natural vegetation located within the distance around the wetlands or watercourse regulated by the municipality in accordance with subsection (a) of this section.

Sec. 4. Section 22a-42 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

(a) To carry out and effectuate the purposes and policies of sections 22a-36 to 22a-45a, inclusive, as amended by this act, it is hereby declared to be the public policy of the state to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts, to preserve and to prevent the despoliation and destruction of such wetlands and watercourses.

(b) Any municipality may acquire wetlands and watercourses within its territorial limits by gift or purchase, in fee or lesser interest including, but not limited to, lease, easement or covenant, subject to such reservations and exceptions as it deems advisable.

(c) On or before July 1, 1988, each municipality shall establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of sections 22a-36 to 22a-45, inclusive, as amended by this act. Each municipality, acting through its legislative body, may authorize any board or commission, as may be by law authorized to act, or may establish a new board or commission to promulgate such regulations, in conformity with the regulations adopted by the commissioner pursuant to section 22a-39, as are necessary to protect the wetlands and watercourses within its territorial limits. The ordinance establishing the new board or commission shall determine the number of members and alternate members, the length of their terms, the method of selection and removal and the manner for filling vacancies in the new board or commission. No member or alternate member of such board or commission shall participate in the hearing or decision of such board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense. In the event of such disqualification, such fact shall be entered on the records of such board or commission and replacement shall be made from alternate members of an alternate to act as a member of such commission in the hearing and determination of the particular matter or matters in which the disqualification arose. For the purposes of this section, the board or commission authorized by the municipality or district, as the case may be, shall serve as the sole agent for the licensing of regulated activities.

(d) At least one member of the inland wetlands agency or staff of the agency shall be a person who has completed the comprehensive training program developed by the commissioner pursuant to section 22a-39. Failure to have a member of the agency or staff with training shall not affect the validity of any action of the agency. 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 shall hold a meeting at least once annually at which information is presented to the members of the agency which summarizes the provisions of the training program. The commissioner shall develop such information in consultation with interested persons affected by the regulation of inland wetlands and shall provide for distribution of video presentations and related written materials which convey such information to inland wetlands agencies. In addition to such materials, the commissioner, in consultation with such persons, shall prepare materials which provide guidance to municipalities in carrying out the provisions of subsection (f) of section 22a-42a.

(e) Any municipality, pursuant to ordinance, may act through the board or commission authorized in subsection (c) of this section to join with any other municipalities in the formation of a district for the regulation of activities affecting the wetlands and watercourses within such district. Any city or borough may delegate its authority to regulate inland wetlands under this section to the town in which it is located.

(f) Municipal or district ordinances or regulations may embody any regulations promulgated hereunder, in whole or in part, or may consist of other ordinances or regulations in conformity with regulations promulgated hereunder. Any ordinances or regulations shall be for the purpose of effectuating the purposes of sections 22a-36 to 22a-45, inclusive, as amended by this act, and [,] a municipality or district, in acting upon ordinances and regulations, shall incorporate the factors set forth in section 22a-41.

(g) Nothing contained in this section shall be construed to limit the existing authority of a municipality or any boards or commissions of the municipality, provided the commissioner shall retain authority to act on any application filed with said commissioner prior to the establishment or designation of an inland wetlands agency by a municipality.

Sec. 5. Subsection (c) of section 22a-42a of the 2010 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2010):

(c) (1) On and after the effective date of the municipal regulations promulgated pursuant to subsection (b) of this section, no regulated activity shall be conducted upon any inland wetland or watercourse without a permit. Any person proposing to conduct or cause to be conducted a regulated activity upon an inland wetland or watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland or watercourse in question is located. The application shall be in such form and contain such information as the inland wetlands agency may prescribe. The date of receipt of an application shall be determined in accordance with the provisions of subsection (c) of section 8-7d. The inland wetlands agency shall not hold a public hearing on such application unless the inland wetlands agency determines that the proposed activity may have a significant impact on wetlands or watercourses, a petition signed by at least twenty-five persons who are eighteen years of age or older and who reside in the municipality in which the regulated activity is proposed, requesting a hearing is filed with the agency not later than fourteen days after the date of receipt of such application, or the agency finds that a public hearing regarding such application would be in the public interest. An inland wetlands agency may issue a permit without a public hearing provided no petition provided for in this subsection is filed with the agency on or before the fourteenth day after the date of receipt of the application. Such hearing shall be held in accordance with the provisions of section 8-7d. The inland wetlands agency shall consider all relevant evidence brought before such agency or its agent by any person or entity, including, but not limited to, scientific evidence, expert opinion, direct observations made regarding the proposed regulated activity, environmental reviews, policy letters or guidance documents provided by or on behalf of an environmental review team or by the Department of Environmental Protection and written comments or oral testimony submitted by the Commissioner of Public Health or by or on behalf of a water company in response to written notice provided to such water company pursuant to section 22a-42f. If the inland wetlands agency, or its agent, fails to act on any application within thirty-five days after the completion of a public hearing or in the absence of a public hearing within sixty-five days from the date of receipt of the application, or within any extension of any such period as provided in section 8-7d, the applicant may file such application with the Commissioner of Environmental Protection who shall review and act on such application in accordance with this section. Any costs incurred by the commissioner in reviewing such application for such inland wetlands agency shall be paid by the municipality that established or authorized the agency. Any fees that would have been paid to such municipality if such application had not been filed with the commissioner shall be paid to the state. The failure of the inland wetlands agency or the commissioner to act within any time period specified in this subsection, or any extension thereof, shall not be deemed to constitute approval of the application.

(2) An inland wetlands agency may delegate to its duly authorized agent the authority to approve or extend an activity that is not located in a wetland or watercourse when such agent finds that the conduct of such activity would result in no greater than a minimal impact on any wetland or watercourse provided such agent has completed the comprehensive training program developed by the commissioner pursuant to section 22a-39. Notwithstanding the provisions for receipt and processing applications prescribed in subdivision (1) of this subsection, such agent may approve or extend such an activity at any time. Any person receiving such approval from such agent shall, within ten days of the date of such approval, publish, at the applicant's expense, notice of the approval in a newspaper having a general circulation in the town wherein the activity is located or will have an effect. Any person may appeal such decision of such agent to the inland wetlands agency within fifteen days after the publication date of the notice and the inland wetlands agency shall consider such appeal at its next regularly scheduled meeting provided such meeting is no earlier than three business days after receipt by such agency or its agent of such appeal. The inland wetlands agency shall, at its discretion, sustain, alter or reject the decision of its agent or require an application for a permit in accordance with subdivision (1) of subsection (c) of this section.

The following Fiscal Impact Statement and Bill Analysis are prepared for the benefit of the members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either chamber thereof for any purpose. In general, fiscal impacts are based upon a variety of informational sources, including the analyst's professional knowledge. Whenever applicable, agency data is consulted as part of the analysis, however final products do not necessarily reflect an assessment from any specific department.

OFA Fiscal Note

State Impact: None

Municipal Impact: None

Explanation

The bill, which conforms statutes to existing practices of municipal inland wetland agencies, does not result in a fiscal impact.

The Out Years

State Impact: None

Municipal Impact: None

OLR Bill Analysis

sSB 123

AN ACT CONCERNING THE PRESERVATION OF NATURAL VEGETATION NEAR WETLANDS AND WATERCOURSES AND CERTAIN ENHANCEMENTS TO THE INLAND WETLANDS AND WATERCOURSES ACT.

SUMMARY:

This bill allows municipal inlands wetlands agencies to deny a permit if the proposed activity would destroy natural vegetation within 100 feet maximum of a wetlands or watercourse. It also requires an inland wetlands agency to consider all relevant evidence brought before it when considering whether to issue a permit to conduct a regulated activity in a wetlands or watercourse. The bill also clarifies the activities permitted in wetlands and watercourses “as of right.”

By law, preservation of wetlands and watercourses is state policy. The bill specifically requires municipalities to regulate activities affecting inland wetlands and watercourses to that end.

EFFECTIVE DATE: October 1, 2010

§ 3 — REGULATED ACTIVITY OUTSIDE WETLANDS OR WATERCOURSES

The law requires municipal wetland agencies to regulate certain activities affecting inland wetlands and watercourses. No regulated activity can take place in a wetland without a permit (see BACKGROUND). Agencies can also regulate activities in upland areas outside of the wetland, but only if in practice they are likely to affect the wetland.

The bill allows such agencies to deny a permit if the proposed activity would destroy natural vegetation within (1) 100 feet of a wetlands or watercourse or (2) the distance set by the municipality, if the distance is less than 100 feet.

The bill defines “natural vegetation" as naturally occurring shrubs, trees, or other plants growing around wetlands or watercourses, not including lawns or manicured grass areas.

By law, a municipal inland wetlands agency may not deny or condition an application for a regulated activity in an area outside wetlands or watercourses based on an the activity's or effect on aquatic, plant, or animal life unless the activity will likely impact or affect the physical characteristics of the wetlands or watercourses. The bill authorizes municipal wetlands agencies to allow the removal of natural vegetation if (1) the applicant can prove removal will not affect soil or water characteristics or (2) there is no feasible or prudent alternative, provided the proposed activity meets all other permitting requirements.

The bill does not apply to constructing ancillary structures to existing residential uses, including decks, outbuildings, fences, or walkways, all of which are subject to other permitting requirements. The bill requires natural vegetation in proximity to the construction of ancillary structures to be protected or restored to the maximum extent practicable.

§ 5 — CONSIDERATION OF EVIDENCE

By law, a person seeking to conduct an activity that involves removing from or depositing material on, or obstructing, building in, altering, or polluting a wetlands or watercourse, must obtain a permit from a municipal inland wetlands agency. The law requires the agency to consider the proposed application's impact on the environment, feasible and prudent alternatives that would have less environmental impact, and several other factors (see BACKGROUND).

The bill requires the agency also to consider all relevant evidence brought before it or its agent by any person or entity, including:

1. scientific evidence and expert opinion;

2. direct observations concerning the proposed regulated activity;

3. environmental reviews, policy letters, and guidance documents provided by, or on behalf of, an environmental review team or the Department of Environmental Protection (DEP); and

4. written comments or oral testimony submitted by the public health commissioner or, by or on behalf of, a water company responding to written notice it received according to law because the proposed activity is in the company's watershed.

§ 2 — PERMITTED ACTIVITIES

By law, certain operations and uses are permitted “as of right” in wetlands and watercourses. These include (1) grazing, farming, nurseries, gardening, and harvesting crops and farm ponds that are three or less acres essential to the farming operation; (2) activities DEP conducts for wetland or watercourse restoration or enhancement or mosquito control; (3) boat anchoring or mooring; and (4) uses incidental to the enjoyment and maintenance of residential property, among other things.

The bill expands the definition of farming to reflect an existing statutory definition of agriculture and farming. This includes soil cultivation, dairying, forestry, and raising or harvesting any agricultural or horticultural commodity, including raising, shearing, feeding, caring for, training, and managing livestock. Livestock includes horses, bees, poultry, fur-bearing animals, and wildlife. These terms also include:

1. the raising or harvesting of oysters, clams, mussels, other molluscan shellfish or fish (aquaculture);

2. the operation, management, conservation, improvement, or maintenance of a farm and its buildings, tools, and equipment, or salvaging timber or cleared land of brush or other debris left by a storm, as an incident to such farming operations;

3. the production or harvesting of maple syrup, maple sugar, or any agricultural commodity, including lumber, as an incident to ordinary farming operations;

4. the harvesting of mushrooms;

5. the hatching of poultry;

6. the construction, operation, or maintenance of ditches, canals, reservoirs, or waterways used exclusively for farming purposes; and

7. handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage, market, or a carrier for transportation to market, or for direct sale (a) any agricultural or horticultural commodity as an incident to ordinary farming operations, or (b) in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market or direct sale (CGS § 1-1(q)).

§ 4 — MUNICIPAL REGULATION

Current law recognizes that preserving and protecting wetlands and watercourses is in the public interest and essential to the health, welfare, and safety of Connecticut residents. It declares that the purpose of the Inland-Wetlands and Watercourses Act (CGS §§ 22a-36 to 22a-45) is to balance economic growth while protecting these resources for the benefit of state residents and their descendants. The bill specifically requires municipalities to regulate activities affecting inland wetlands and watercourses to preserve them and prevent them from being spoiled and destroyed.

BACKGROUND

Inland Wetlands and Watercourses

By law, “inland wetlands” are land areas that consist of any of the soil types designated as poorly drained, very poorly drained, alluvial, and floodplain by the U.S. Department of Agriculture Natural Resources Conservation Service's National Cooperative Soils Survey, which includes submerged land, but not land bordering or lying beneath tidal waters. “Watercourses” are, in general, rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs and all other bodies of water, natural or artificial, vernal or intermittent, public or private, which are in, flow through, or border the state or any portion of it.

Applying for a Wetlands Permit

By law, anyone proposing to conduct or cause to be conducted a regulated activity on an inland wetland or watercourse must apply for a permit from the inland wetlands agency of the town or towns where the wetland or watercourse is located. By law, a wetlands commission cannot hold a public hearing on a application to conduct a regulated activity in a wetland unless (1) it determines that the activity may significantly affect wetlands or watercourses, (2) at least 25 people sign a petition requesting a hearing and it is filed with the commission within 14 days after the application is received, or (3) the commission finds that a hearing would be in the public interest.

An inland wetlands agency may issue a permit without a public hearing if no one files a petition with the agency by the 14^th day after the agency received the application.

When an application received a public hearing or the agency found that the proposed activity may have a significant impact on wetlands or watercourses, it cannot issue permit unless the DEP commissioner finds, on the basis of the record, that a feasible and prudent alternative does not exist.

When an application is denied on a finding that there may be feasible and prudent alternatives to the proposed regulated activity that would have a less adverse impact on wetlands or watercourses, the commissioner or the inland wetlands agency, as the case may be, must propose on the record, in writing the types of alternatives that the applicant may investigate.

Factors an Inland Wetlands Agency Must Consider

By law, in deciding whether to grant a permit, an agency must consider:

1. the environmental impact of the proposed regulated activity on wetlands or watercourses;

2. the purpose of the proposed activity and whether any prudent and feasible alternatives would cause less or no environmental impact to wetlands or watercourses;

3. the relationship between the short-term and long-term impact of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses;

4. irreversible and irretrievable loss of wetland or watercourse resources that would be caused by the proposed regulated activity, including the extent to which the activity would foreclose a future ability to protect, enhance, or restore these resources, and any mitigation measures that may be considered as a condition of issuing a permit for such activity, including measures to (a) prevent or minimize pollution or other environmental damage, (b) maintain or enhance existing environmental quality, or (c) in the following order of priority: restore, enhance, and create productive wetland or watercourse resources;

5. the character and degree of injury to, or interference with, safety, health, or the reasonable use of property caused or threatened by the proposed regulated activity; and

6. the impact of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity that are made inevitable by the activity and that may have an impact on wetlands or watercourses (CGS § 22a-41).

COMMITTEE ACTION

Environment Committee

Joint Favorable Substitute