§ 22a-42a — Establishment of boundaries by regulation. Adoption of regulations. Permits. Filing fee.

Connecticut § 22a-42a

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

Text

(a) The inland wetlands agencies authorized in section 22a-42 shall through regulation provide for (1) the manner in which the boundaries of inland wetland and watercourse areas in their respective municipalities shall be established and amended or changed, (2) the form for an application to conduct regulated activities, (3) notice and publication requirements, (4) criteria and procedures for the review of applications, and (5) administration and enforcement. (b) No regulations of an inland wetlands agency including boundaries of inland wetland and watercourse areas shall become effective or be established until after a public hearing in relation thereto is held by the inland wetlands agency. Any such hearing shall be held in accordance with the provisions of section 8-7d . A copy of such proposed regulation or boundary shall be filed in the office of the town, city or borough clerk as the case may be, in such municipality, for public inspection at least ten days before such hearing, and may be published in full in such paper. A copy of the notice and the proposed regulations or amendments thereto, except determinations of boundaries, shall be provided to the commissioner at least thirty-five days before such hearing. Such regulations and inland wetland and watercourse boundaries may be from time to time amended, changed or repealed, by majority vote of the inland wetlands agency, after a public hearing in relation thereto is held by the inland wetlands agency, in accordance with the provisions of section 8-7d . Regulations or boundaries or changes therein shall become effective at such time as is fixed by the inland wetlands agency, provided a copy of such regulation, boundary or change shall be filed in the office of the town, city or borough clerk, as the case may be. Whenever an inland wetlands agency makes a change in regulations or boundaries it shall state upon its records the reason why the change was made and shall provide a copy of such regulation, boundary or change to the Commissioner of Energy and Environmental Protection no later than ten days after its adoption provided failure to submit such regulation, boundary or change shall not impair the validity of such regulation, boundary or change. All petitions submitted in writing and in a form prescribed by the inland wetlands agency, requesting a change in the regulations or the boundaries of an inland wetland and watercourse area shall be considered at a public hearing held in accordance with the provisions of section 8-7d . The failure of the inland wetlands agency to act within any time period specified in this subsection, or any extension thereof, shall not be deemed to constitute approval of the petition. (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 . 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 Energy and 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. (d) (1) In granting, denying or limiting any permit for a regulated activity the inland wetlands agency, or its agent, shall consider the factors set forth in section 22a-41 , and such agency, or its agent, shall state upon the record the reason for its decision. In granting a permit the inland wetlands agency, or its agent, may grant the application as filed or grant it upon other terms, conditions, limitations or modifications of the regulated activity which are designed to carry out the policy of sections 22a-36 to 22a-45 , inclusive. Such terms may include any reasonable measures which would mitigate the impacts of the regulated activity and which would (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. Such terms may include restrictions as to the time of year in which a regulated activity may be conducted, provided the inland wetlands agency, or its agent, determines that such restrictions are necessary to carry out the policy of sections 22a-36 to 22a-45 , inclusive. No person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid certificate of zoning or subdivision approval, special permit, special exception or variance or other documentation establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality pursuant to chapters 124 to 126, inclusive, or any special act. The agency may suspend or revoke a permit if it finds after giving notice to the permittee of the facts or conduct which warrant the intended action and after a hearing at which the permittee is given an opportunity to show compliance with the requirements for retention of the permit, that the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work as set forth in the application. The applicant shall be notified of the agency's decision by certified mail within fifteen days of the date of the decision and the agency shall cause notice of their order in issuance, denial, revocation or suspension of a permit to be published in a newspaper having a general circulation in the town wherein the wetland or watercourse lies. In any case in which such notice is not published within such fifteen-day period, the applicant may provide for the publication of such notice within ten days thereafter. (2) (A) Any permit issued under this section for the development of property for which an approval is required under chapter 124, 124b, 126 or 126a shall (i) not take effect until each such approval, as applicable, granted under such chapter has taken effect, and (ii) be valid until the approval granted under such chapter expires or for ten years, whichever is earlier. (B) Any permit issued under this section for any activity for which an approval is not required under chapter 124, 124b, 126 or 126a shall be valid for not less than two years and not more than five years. Any such permit shall be renewed upon request of the permit holder unless the agency finds that there has been a substantial change in circumstances which requires a new permit application or an enforcement action has been undertaken with regard to the regulated activity for which the permit was issued, provided no permit may be valid for more than ten years. (e) The inland wetlands agency may require a filing fee to be deposited with the agency. The amount of such fee shall be sufficient to cover the reasonable cost of reviewing and acting on applications and petitions, including, but not limited to, the costs of certified mailings, publications of notices and decisions and monitoring compliance with permit conditions or agency orders. (f) If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses. (g) (1) Notwithstanding the provisions of subdivision (2) of subsection (d) of this section, any permit issued under this section prior to July 1, 2011, that has not expired prior to July 12, 2021, shall expire not less than fourteen years after the date of such approval. Any such permit shall be renewed upon request of the permit holder unless the agency finds that there has been a substantial change in circumstances that requires a new permit application or an enforcement action has been undertaken with regard to the regulated activity for which the permit was issued, provided no such permit shall be valid for more than nineteen years. (2) Notwithstanding the provisions of subdivision (2) of subsection (d) of this section, any permit issued under this section on or after July 1, 2011, but prior to June 10, 2021, that did not expire prior to March 10, 2020, shall expire not less than fourteen years after the date of such approval. Any such permit shall be renewed upon request of the permit holder unless the agency finds that there has been a substantial change in circumstances that requires a new permit application or an enforcement action has been undertaken with regard to the regulated activity for which the permit was issued, provided no such permit shall be valid for more than nineteen years. See Sec. 7-159b re preapplication review of use of property.

Legislative History

(P.A. 73-571, S. 4, 9; P.A. 75-387, S. 1; P.A. 77-599, S. 3, 7; P.A. 79-285, S. 1, 2; P.A. 81-125, S. 2; P.A. 83-109; P.A. 87-533, S. 6, 14; P.A. 89-356, S. 16; P.A. 92-148, S. 1, 2; P.A. 93-305; P.A. 95-313, S. 3; P.A. 96-157, S. 4; 96-269, S. 3, 4; P.A. 97-124, S. 10, 16; P.A. 98-209, S. 16; P.A. 99-225, S. 16, 33; P.A. 03-177, S. 11, 12; 03-276, S. 6; P.A. 09-181, S. 3; P.A. 11-5, S. 4; P.A. 11-80, S. 1; P.A. 12-151, S. 1; P.A. 21-34, S. 2, 6; 21-163, S. 4.) History: P.A. 75-387 specified in Subsec. (b) that amendment or repeal of regulations takes place only after public hearing is held, moved upper limit for hearing date from 60 to 65 days after receipt of application and required that action be taken within 65 rather than 45 days after completion of hearing in Subsec. (c), and required that applicant be notified of decision within 15 rather than 5 days after decision reached in Subsec. (d); P.A. 77-599 required that commissioner be sent a copy of changed regulations, boundaries, etc. in Subsec. (b) and a copy of permits or orders issued in Subsec. (d) and required that reasons for a decision be included in the record; P.A. 79-285 required publication of notice twice rather than once and set standards for times of posting and added Subsec. (e) re filing fee; P.A. 81-125 added the word “watercourse” after each use of the words “inland wetland” for consistency with other sections of the chapter; P.A. 83-109 amended Subsec. (c) by establishing the day of receipt of applications for permits to conduct a regulated activity upon an inland wetlands or watercourse; P.A. 87-533 amended Subsec. (a) to require regulations on forms for an application notice and publication requirements, criteria and procedures for review and administrative and enforcement, amended Subsec. (b) to require notice to the commissioner before a public hearing and to delete provision which had authorized imposition of filing fee, amended Subsec. (c) to require that public hearing be completed 45 days after commencement and to reduce time for action on applications from 65 to 35 days, amended Subsec. (d) to require zoning compliance before regulated activity is conducted in an inland wetland and to delete provision requiring sending of copy of permit and order to commissioner within 10 days of issuance and amended Subsec. (e) to authorize municipalities to charge filing fees sufficient to cover the reasonable cost of reviewing and acting on applications; P.A. 89-356 amended Subsec. (b) to authorize the petitioner to consent to more than one extension of the periods specified for the holding of the hearing and for action on the petition provided the total extension is not for longer than the original period and to add provision that the failure of the agency to act in a timely manner shall not be deemed to constitute approval of the petition, amended Subsec. (c) to add provisions authorizing the applicant to consent to one or more extensions of the time periods for agency action, provided the total extension is not for longer than the original period, or to withdraw the application, authorizing the applicant to file the application with the commissioner of environmental protection for review and action if the agency fails to act within specified time periods or any extension thereof, specifying that the costs of the review by the commissioner shall be paid by the municipality and that fees otherwise payable to the municipality shall be paid to the state, and specifying that the failure of the agency or commissioner to act in a timely manner shall not be deemed to constitute approval of the application, and amended Subsec. (d) to authorize the applicant to provide for the publication of the notice of the decision of the agency when such notice is not published in a timely manner; P.A. 92-148 amended Subsec. (b) to change the required time of the first newspaper advertisement for a hearing under that Subsec. to not more than 15 days nor less than 10 days before such hearing, reducing time frame by 10 days, and amended Subsec. (d) to provided for specific time limits for permits issued under that Subsec; P.A. 93-305 amended Subsec. (d) to modify the authority of wetlands agencies re expiration dates of permits and time required for completion of regulated activities; P.A. 95-313 added Subsec. (f) re buffer areas; P.A. 96-157 amended Subsec. (c) to create Subdivs. (1) and (2), amended Subdiv. (1) to condition the holding of public hearings on applications and added Subdiv. (2) to provide for delegation by the agency of certain authority to an agent, amended Subsec. (d) to create Subdivs. (1) and (2) and amended Subdiv. (1) to include references to action by the agent, to provide for terms for permits, deleted provisions re time periods for permits and added Subdiv. (2) re time periods for permits, and amended Subsec. (f) to delete a reference to “buffer” areas and to include references to watercourses; P.A. 96-269 changed effective date of P.A. 96-157 from October 1, 1996, to January 1, 1997, effective June 12, 1996 (Revisor's note: Due to a clerical error in Subsec. (c)(1) the words “... impact on wetlands or watercourses, a petition signed ...” were incorrectly printed in the original engrossed bill version of P.A. 96-157 as “... impact on wetlands, watercourses or a petition signed ...”); P.A. 97-124 amended Subsec. (c) to modify the time period for making a request for a public hearing, to exempt the actions of an agent of the municipal agency from certain time period requirements and to make technical changes, effective June 6, 1997; P.A. 98-209 amended Subsec. (c) to add additional provision for issuance of a permit without a public hearing; P.A. 99-225 amended Subsec. (c)(1) to modify the deadline for receipt of a petition for a public hearing on applications under this section, effective June 29, 1999; P.A. 03-177 amended Subsec. (b) by eliminating provisions re public hearing notice and procedure and the time for an inland wetlands agency to render a decision on a petition and adding provisions requiring public hearing to be conducted in accordance with Sec. 8-7d, and amended Subsec. (c)(1) by replacing provisions re determination of date of receipt of application, public hearing notice and procedure and the time for rendering a decision with provisions requiring public hearing to be conducted in accordance with Sec. 8-7d, effective October 1, 2003, and applicable to applications filed on or after that date; P.A. 03-276 amended Subsec. (c)(1) to add age and residency requirements for persons who sign a petition, effective July 1, 2003; P.A. 09-181 added Subsec. (g) re permits issued during period from July 1, 2006, to July 1, 2009, effective July 2, 2009; P.A. 11-5 amended Subsec. (g) to apply to any permit issued prior to July 1, 2011, that has not expired prior to May 9, 2011, and to provide that such permits shall expire not less than 9 years after approval date and shall be valid for not more than 14 years, effective May 9, 2011; pursuant to P.A. 11-80, “Commissioner of Environmental Protection” was changed editorially by the Revisors to “Commissioner of Energy and Environmental Protection” in Subsecs. (b) and (c)(1), effective July 1, 2011; P.A. 12-151 amended Subsec. (d) by adding provision in Subdiv. (1) authorizing restrictions re time of year in which regulated activity may be conducted and, in Subdiv. (2), by substituting “chapter 124, 124b, 126 or 126a” for “section 8-3, 8-25 or 8-26”, by changing length of time in which permit is valid from 5 years to “until the approval granted under such chapter expires or for ten years, whichever is earlier” and by replacing “other activity” with “activity for which approval is not required under chapter 124, 124b, 126 or 126a”; P.A. 21-34 amended Subsec. (d)(2) by redesignating existing provisions re permits for which approval is required under Ch. 124, 124b, 126 or 126a as Subpara. (A) and provisions re permits for which an approval is not required under Ch. 124, 124b, 126 or 126a as Subpara. (B), adding Subpara. (A)(i) re when permit takes effect and redesignating existing provisions re permit expiration as Subpara. (A)(ii), effective July 1, 2021, and applicable to permits issued on or after July 1, 2021, and amended Subsec. (g) by redesignating existing provisions as Subdiv. (1) and adding Subdiv. (2) re expiration of permits issued on or after July 1, 2011, but prior to June 10, 2021, effective June 10, 2021; P.A. 21-163 amended Subsec. (g) to replace “May 9, 2011” with “July 12, 2021”, replace “not less than nine” with “not less than fourteen” re permit expiration and replace “more than fourteen” with “more than nineteen” re permit validity, effective July 12, 2021, and applicable to approvals made prior to July 1, 2011. Cited. 179 C. 250; 180 C. 421; Id., 692; 186 C. 67; 192 C. 247; 196 C. 218; 203 C. 525; 209 C. 544; Id., 652; 211 C. 416; 212 C. 710; Id., 727; 216 C. 320; 217 C. 164; 218 C. 703; 219 C. 404; 220 C. 362; Id., 476; 222 C. 98; Id., 541; 226 C. 579; 228 C. 95; 229 C. 247; Id., 627; Id., 654; 231 C. 451; 242 C. 335. Site inspection was not a “hearing” requiring stringent notice requirement of statute. 243 C. 266. Cited. 4 CA 271; 5 CA 70; 6 CA 715; 12 CA 47; 15 CA 336; 18 CA 440; 19 CA 713; 20 CA 309; 21 CA 122; Id., 131; 24 CA 708; 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; Id., 643; 32 CA 799; 34 CA 385; 36 CA 270; 37 CA 166; 43 CA 227. Cited. 41 CS 444; 42 CS 57. Subsec. (c): Cited. 183 C. 532. Time limits directory not mandatory. 222 C. 269. Cited. 25 CA 61; Id., 164; 35 CA 317; 41 CA 39; Id., 89; Id., 120. Purpose of hearing under Subdiv. (1); site inspections are not hearings. 49 CA 95. Subsec. (d): Requirement of stating upon the record the reason for its decision is met by commission's statement of the factors upon which it relied. 180 C. 692. Trial court on appeal must search record of hearings before commission to determine if an adequate reason exists for its decision. 213 C. 604. Cited. 19 CA 334; 27 CA 214; 29 CA 469; 41 CA 421; judgment reversed, see 242 C. 550. Subsec. gives commission explicit authority to place conditions, modifications or limitations on the granting of a permit application and does not attempt to limit such conditions in any way; whether proposed use is an “as of right use” under regulations and statutes has no relevance to whether commission may condition approval of a permit application on the posting of a bond. 114 CA 695. Subdiv. (1) requires consideration of the factors enumerated in Sec. 22a-41 when issuing a permit to conduct regulated activities and not when considering an application to modify one condition on a permit that was already approved. 124 CA 489. Subsec. (f): Commission may regulate activities impacting the physical characteristics of wetlands and watercourses, but no other aspects, such as wildlife or biodiversity. 266 C. 150. Inland wetlands commission, under section, must first enact a formal regulation to exercise its authority over upland review areas. 79 CA 710. A regulated activity may include an activity that occurs in nonwetland areas, but that will affect wetland areas. 122 CA 644. Municipal inland wetlands regulations need not explicitly reference stormwater impacts in order for inland wetlands commission to regulate such impacts and related activities affecting adjacent wetlands and watercourses. 148 CA 91.