§ 22a-40 — Permitted operations and uses.

Connecticut § 22a-40

• Jurisdiction: Connecticut
• Title 22a: Environmental Protection
• Ch. 440: Wetlands and Watercourses

Text

(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right: (1) Grazing, farming, 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 Energy and 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 (A) for which a building permit has been issued, or (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 ; (6) Maintenance relating to any drainage pipe which existed before the effective date of any municipal regulations adopted pursuant to section 22a-42a 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; and (7) Withdrawals of water for fire emergency purposes. (b) The following operations and uses shall be permitted, as nonregulated uses in wetlands and watercourses, provided they do not disturb the natural and indigenous character of the wetland or watercourse by removal or deposition of material, alteration or obstruction of water flow or pollution of the wetland or watercourse: (1) Conservation of soil, vegetation, water, fish, shellfish and wildlife; (2) Outdoor recreation including play and sporting areas, golf courses, field trials, nature study, hiking, horseback riding, swimming, skin diving, camping, boating, water skiing, trapping, hunting, fishing and shellfishing where otherwise legally permitted and regulated; and (3) The installation of a dry hydrant by or under the authority of a municipal fire department, provided such dry hydrant is only used for firefighting purposes and there is no alternative access to a public water supply. For purposes of this section, “dry hydrant” means a non-pressurized pipe system that: (A) Is readily accessible to fire department apparatus from a proximate public road, (B) provides for the withdrawal of water by suction to such fire department apparatus, and (C) is permanently installed into an existing lake, pond or stream that is a dependable source of water. (c) Any dredging or any erection, placement, retention or maintenance of any structure, fill, obstruction or encroachment, or any work incidental to such activities, conducted by a state agency, which activity is regulated under sections 22a-28 to 22a-35 , inclusive, or sections 22a-359b to 22a-363f , inclusive, shall not require any permit or approval under sections 22a-36 to 22a-45 , inclusive.

Legislative History

(1972, P.A. 155, S. 3; P.A. 73-571, S. 1, 9; P.A. 77-599, S. 2, 7; P.A. 87-533, S. 2, 14; P.A. 88-364, S. 33, 123; P.A. 94-89, S. 15; P.A. 97-289, S. 5, 9; P.A. 98-209, S. 4; P.A. 11-80, S. 1; 11-184, S. 1.) History: P.A. 73-571 allowed usage of wetlands and watercourses for grazing, farming, etc. purposes, for residential purposes, for boat anchorage or mooring and for water supply purposes “as of right” as was previously the case deleting exception “as they involve regulated activities”, but allowed usage “as a nonregulated use ... provided they do not disturb the natural and indigenous character of the land” for conservation of soil, vegetation, etc. and outdoor regulation, where previously these uses too had been “as of right”; P.A. 77-599 amended Subsec. (a)(2) for clarity adding references to approval by municipal planning and zoning commissions and to July 1, 1974, as alternate approval date, amended (a)(4) for clarity by adding words “equal to or smaller than” with reference to lot size, by specifying that incidental uses include “maintenance of existing structures and landscaping” but exclude “removal or deposition of significant amounts of material from or onto a wetland or watercourse or diversion or alteration of a watercourse”, amended Subsec. (b) to specifically prohibit removal or deposition of material, alteration or obstruction of water flow or pollution of wetlands or watercourses and to refer to field “trials” rather than field “trails” in Subdiv. (2); P.A. 87-533 amended Subsec. (a)(1) to require permits for farm ponds not essential to the farming operation, and certain road construction, relocation of wetlands and watercourses with continual flow, clear cutting of timber, and mining for the purposes of sale and amended Subsec. (a)(2) to require permits for all residential homes after July 1, 1987; P.A. 88-364 made a technical change in Subsec. (a); P.A. 94-89 added Subsec. (a)(6) re maintenance of drainage pipes in certain wetlands areas; P.A. 97-289 amended Subsec. (a)(1) to include in the operations permitted as of right activities of the Commissioner of Environmental Protection re wetland or watercourse restoration and mosquito control, effective July 1, 1997; P.A. 98-209 added new Subsec. (c) re permitted uses by state agencies; pursuant to P.A. 11-80, “Department of Environmental Protection” was changed editorially by the Revisors to “Department of Energy and Environmental Protection” in Subsec. (a)(1), effective July 1, 2011; P.A. 11-184 amended Subsec. (a) by adding Subdiv. (7) re withdrawals of water for fire emergency purposes and making technical changes, and amended Subsec. (b) by adding Subdiv. (3) re installation of a dry hydrant by or under the authority of a municipal fire department. Cited. 179 C. 250; 180 C. 421; Id., 692; 186 C. 67; 193 C. 414; 196 C. 218; 203 C. 525; 209 C. 544; Id., 652; 211 C. 416; 212 C. 710; Id., 727; 213 C. 604; 216 C. 320; 217 C. 164; 218 C. 703; 219 C. 404; 220 C. 362; Id., 476; 226 C. 358; Id., 579; 228 C. 95; 229 C. 627; Id., 654; 242 C. 335. Cited. 4 CA 271; 5 CA 70; 6 CA 715; 7 CA 283; 12 CA 47; 15 CA 336; 19 CA 713; 20 CA 309; 26 CA 564; 27 CA 590; 28 CA 780; 29 CA 12; Id., 105; 30 CA 85; 31 CA 105; Id., 599; judgment reversed, see 229 C. 627; 32 CA 799; 34 CA 385; 36 CA 270; 37 CA 166. A party cannot file a declaratory judgment action to circumvent the requests of a local wetlands commission to determine its jurisdiction over that party's activities; commission's jurisdiction must first be determined by the commission. 150 CA 1. Cited. 35 CS 145; 36 CS 1; 41 CS 444; 42 CS 57. Subsec. (a): Subdiv. (4): Statute intended to apply only to that which is already in existence on residential property, including residence. 183 C. 532. Cited. 215 C. 616. Subdiv. (2): There is no as-of-right exemption from wetlands regulation under section for construction of houses on subdivision lots existing prior to July 1, 1974, unless a building permit had been issued for such lot prior to July 1, 1987. 229 C. 247. Subdiv. (1): The types of activities permitted as of right are limited to those enumerated in Subdiv. and corresponding town regulations, and do not include the filling of wetlands for the purpose of constructing roads. 302 C. 60. The plain language of the text, as evidenced by the legislature's sentence structure and use of punctuation, makes it clear that road construction directly related to farming operations is exempt from the regulatory oversight of municipal wetlands agencies. 322 C. 1. Subdiv. (1): Regulation in effect at time of court decision is controlling. 18 CA 440. Cited. 20 CA 819; 24 CA 163. Re statutory limitation on farming exemption that prohibits “filling or reclamation of wetlands or watercourses with continual flow”, the phrase “with continual flow” applies only to watercourses, not to wetlands. 117 CA 630.