§ 22a-363b — Activities eligible for certificate of permission. Exemptions. Issuance of certificate. Failure of commissioner to respond.

Connecticut § 22a-363b

• Jurisdiction: Connecticut
• Title 22a: Environmental Protection
• Ch. 446i: Water Resources. Invasive Plants

Text

(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, 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, this section or section 22a-361. 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 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 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, including beach nourishment, 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, 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) (1) The commissioner shall issue a certificate of permission for activities 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 substantially complies with all applicable standards and criteria. The commissioner shall authorize the maintenance of or minor alterations to unauthorized activities consistent with this subsection, including, but not limited to, the use of alternative deck surfacing materials and the use of alternative materials for seawalls designed using generally accepted engineering practices. Unauthorized activities which are ineligible for certificates of permission may be subject to applicable enforcement actions by the commissioner. (2) In the event of an initial denial of a certificate of permission, the applicant, not later than thirty days after the issuance of such initial denial, shall be entitled to request a meeting with a mediator in the department's Office of Adjudication for the purpose of attempting to resolve any disagreement concerning such initial denial. (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 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, 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 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 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 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 existence of any waterfront access easement created after January 1, 1995, shall not entitle an owner of the dominant or servient estate to additional structures for riparian or littoral access.

Legislative History

(P.A. 90-111, S. 2; P.A. 93-381, S. 9, 39; P.A. 95-37, S. 1, 2; P.A. 96-118, S. 5; P.A. 01-98, S. 1, 4; P.A. 10-106, S. 10; P.A. 11-80, S. 1; P.A. 12-101, S. 8; P.A. 13-179, S. 10.) History: P.A. 93-381 replaced department of health services with department of public health and addiction services, effective July 1, 1993; P.A. 95-37 amended Subsec. (a) to allow certificate of permission for maintenance of structures, fill, obstructions or encroachments authorized in tidal wetlands and for placement or reconfiguration of piers, floats, docks or moorings at marinas and to make technical changes, added a new Subsec. (b) re certificates of permission for activities completed prior to January 1, 1980, relettered former Subsecs. (b) and (c) as (c) and (d) respectively, and amended those Subsecs. to add a criterion for not issuing a certificate of permission, effective May 16, 1995; P.A. 96-118 amended Subsec. (c) to make minor technical revisions for clarity; P.A. 01-98 amended Subsecs. (b) and (c) to make technical changes for purposes of gender neutrality and added Subsec. (e) prohibiting the issuance of certificates of permission for pound nets, weirs or similar fish harvesting structures not utilized prior to June 6, 2001, authorizing the issuance of permits for fish harvesting structures and providing for public hearing on issuance of permit, effective June 6, 2001; P.A. 10-106 amended Subsec. (a) by adding tidal wetland restoration, resource restoration or enhancement activity in Subdiv. (9) and adding Subdiv. (11) re substantial maintenance or repair of structures, fill, obstructions or encroachments placed landward of mean high waterline and waterward of high tide line completed prior to October 1, 1987, amended Subsec. (b) by changing January 1, 1980, to January 1, 1995, re completed activities, making technical changes replacing requirement for applicant to show that activity does not interfere with navigation or littoral or riparian rights and does not cause adverse impacts with requirement that activity complies with all applicable standards and criteria and adding provision allowing commissioner to authorize minor alterations to unauthorized activities, and made technical changes in Subsecs. (c) and (d); pursuant to P.A. 11-80, “Commissioner of Environmental Protection” and “Department of Environmental Protection” were changed editorially by the Revisors to “Commissioner of Energy and Environmental Protection” and “Department of Energy and Environmental Protection”, respectively, effective July 1, 2011; P.A. 12-101 amended Subsec. (a)(11) to change “high tide line” to “coastal jurisdiction line”; P.A. 13-179 amended Subsec. (a) by replacing references to June 24, 1939, with references to January 1, 1995, in Subdivs. (2) and (7) and adding “including beach nourishment” in Subdiv. (9), amended Subsec. (b) by designating existing provisions as Subdiv. (1) and amending same to change “may” to “shall” re issuance of certificate, delete provision re determining eligibility of activities conducted without prior authorization and add provision re use of alternative materials and by adding Subdiv. (2) re meeting request after initial denial, amended Subsec. (c) by changing “may” to “shall” re approval, modification or denial of certificate and deleting provision re commissioner requiring application for permit if significant impact to environment or coastal resources is found, added Subsec. (f) re entitlement to additional structures for riparian or littoral access, and made technical changes. Subsec. (a)(2) has no retroactive effect. 314 C. 1. The phrase “continuously maintained and serviceable” in Subsec. (a)(2) requires that the structure be kept in a state of repair and fit for use without interruption, and gives effect to the legislative intent to permit substantial maintenance to the preexisting conditions and dimensions of pre-1939 structures in limited circumstances while requiring a permit for modification or expansion of such structures. 136 CA 135; judgment affirmed, see 314 C. 1.