AN ACT CONCERNING PRESERVING NATURAL VEGETATION NEAR WETLANDS AND WATERCOURSES.

AN ACT CONCERNING PRESERVING NATURAL VEGETATION NEAR WETLANDS AND WATERCOURSES.

This bill expands the law concerning inland wetlands and watercourses. It (1) explicitly requires the Department of Environmental Protection (DEP) commissioner to consider the significance of inland wetlands and future development when reviewing applications for regulated activities and (2) expands the land area she and a municipal inland wetland agency must consider when considering applications, among other things. On the other hand, the bill expands the area in which “as of right” (permitted) activities are allowed.

The bill explicitly requires the DEP commissioner to consider the significance of the wetland or watercourse and the existing or expected future development in the area around the wetland or watercourse when considering a proposed regulated activity.

By law, the commissioner must supervise the administration and enforcement of laws concerning wetlands and watercourses. She must consider the environmental impact of a proposed regulated activity on wetlands and watercourses. The law defines regulated activities as those operations that are within, or make use of, a wetland or watercourse that involve (1) removal or deposition of material of the wetland or watercourse or (2) obstruction, construction, alteration, or pollution of the wetland or watercourse.

For example, developers must apply for a wetland permit when they apply for planning and zoning approval of a project that impinges on a wetland, and planning and zoning commissions cannot act until the wetlands agency acts. The commissioner, among other things, must consider an applicant's purpose for the proposed activity and whether any prudent alternative to it would cause less or no environmental impact. The bill thus expands what she must consider.

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 requires an applicant for a regulated activity, and explicitly requires regulators to consider, a wider area around wetlands and watercourses and include the natural vegetation. Specifically, the bill requires the DEP commissioner and municipal inland wetlands agencies to:

1. require the applicant to establish that any regulated activity is (a) consistent with the law and (b) unlikely to have an adverse impact cumulatively, in time and area, on the natural vegetation's function and

2. determine the area subject to review, with the goal of preserving the natural vegetation, from the greater of (a) the first 100 feet around any wetland or watercourse or (b) the area of floodplain mapped by the Federal Emergency Management Agency.

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.

It defines “natural vegetation's function” to include maintaining or restoring the biological and ecological integrity of watercourses and wetlands ecosystems by filtering stormwater runoff, protecting water quality, preventing erosion, providing sedimentation control, reducing the impact of flooding, and minimizing the loss of property.

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 impact 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 appears to provide an agency the right to deny or condition an application based on preserving natural vegetation.

By law, if a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, the regulation must:

1. be in accordance with the inland wetlands regulations it adopts related to application for, and approval of, activities to be conducted in wetlands or watercourses and

2. apply only to activities that are likely to impact or affect wetlands or watercourses.

The bill specifies the second provision concerning regulation applies only to activities that are likely to impact or affect wetlands or watercourses in the immediate vicinity of the regulated activity or throughout the watershed of the wetland or watercourse (apparently allowing the agency to take a narrower or broader view of the activity as it chooses). However, while an agency's regulation of activities within areas around wetlands and watercourses appears to be conditional under existing law (“if a municipal inland wetlands agency regulates activities within areas around…”), the bill's requirement to determine the area subject to review with the goal of preserving the natural vegetation seems to be de facto regulation of the wider area around wetlands. This could be confusing to potential regulated use applicants.

By law, certain operations and uses are permitted “as of right” in wetlands and watercourses, such as (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 area of these activities to include “areas around wetlands. ” The bill specifies that agriculture (see BACKGROUND) is included as of right in wetlands, areas around wetlands, and watercourses. It adds activities the Department of Agriculture (DAOG) conducts for wetland or watercourse restoration or enhancement or mosquito control to the “as of right” activities.

The bill also adds permitted activities, explicitly allowing activities conducted:

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. In making her finding, she must consider the facts and circumstances under existing law. Her finding and the reasoning must be stated in the written record.

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. But this does not shift the burden from the applicant to prove that he or she is entitled to the permit or to present alternatives to the proposed regulated activity.

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.

By law, agriculture and farming include cultivation of the soil, dairying, forestry, raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, including horses, bees, poultry, fur-bearing animals, and wildlife. The 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)).

HB 6590, favorably reported by the Planning and Development Committee on March 13 and the Environment Committee on April 14 (File 459), requires the DEP commissioner or an inland wetlands agency, when considering a proposed regulated activity on the same property for which they already denied an application, to consider the application as new (de novo), ignoring the denied application as not feasible or prudent to the current application. The bill was tabled for House Calendar on April 15.

On April 28, 2009, the House referred the bill to the Planning and Development Committee, which on May 4 favorably reported the substitute that added agriculture and activities DOAG conducts for wetland or watercourse restoration or enhancement or mosquito control to as of right activities.