Inland Wetlands and Watercourses
Inland wetlands and watercourses in CT are regulated by both municipal inland wetland and watercourse commissions and the state Dept. of Energy & Environmental Protection under the same state statute, C.G.S., sections 22a-36 to 22a-45. This page contains information and links to various research, legislation and case law on CT's inland wetlands and watercourses.
DEEP's E-Newsletter for Municipal Inland Wetlands & Watercourses Agencies.
DEEP's page for Legislation, Regulations & Case Law Updates - this link is provided by DEEP to municipal agencies on a regular basis.
Wetland Permit Expiration Dates Extended, Coordinated with P&Z Permits:
Public Act 12-151, Extends wetland permit expiration dates to match associated planning and zoning commission approvals (e.g., site plans, subdivisions).
Public Act 11-5 creates a 4-yr automatic extension that applies to all site plan, subdivision and wetland approvals in place on May 9 and any new approvals up to July 1, 2011; this preserves approvals already granted to allow markets to recover.
Local Wetland Agencies Must Have Evidence in the Record of Likely Harm:
In Lord Family of Windsor v. Windsor IWWA, the CT Surpreme Court on Sept. 9, 2008, overturned the denial of a developer's application, confirming the law that local inland wetlands agencies must have evidence in the record of likely harm to a wetland to support a denial of an application. Inland Wetlands Decision (see companion case - Special Permits for Subdivisions Over Certain Size Not Allowed).
Legislature Clarifies that Simultaneous Filing of P&Z and Inland Wetlands Applications is Allowed:
2007: See our support statement for HB 7040, Clarify Simultaneous Filing of P&Z and Inland Wetlands Applications - the bill was passed by the House and Senate and signed by the Governor on June 11, 2007, and became effective Oct. 1, 2007; see Public Act 07-102. See also, Public Act 08-38, which corrected part of PA 07-102.
Legislature Confirms Limitations on Local Wetland Commission Authority:
2004 Inland Wetlands Legislation - Confirming AvalonBay v. Wilton limitations on local inland wetland commission authority; see also the important Senate and House floor debate transcripts. See CT Supreme Court decision in Avalon Bay v. Wilton. See the well reasoned Jan. 18, 2006, trial court decision in Toll Brothers v. Bethel Inland Wetlands Commission - interpreting Avalon Bay, River Bend Associates v. Simsbury and the 2004 legislation.
Watercourse and Wetland "Buffer" Areas:
The term "buffer" areas does not mean "upland review areas" as defined in the inland wetland and watercourses act. Upland review areas are those areas outside of defined watercourses and wetlands upon which if a regulated activity is proposed the local wetland commission should review the activity's likely adverse impact on the wetland or watercourse.
Buffer areas can simply mean an area outside of and next to a wetland or watercourse. Most of the time, though, buffer areas are thought of as designated off-limits areas outside the boundaries of wetlands or watercourses upon which no or very limited activity would be allowed. In this regulatory context, buffer areas are not currently allowed under the law.
Proponents of regulatory buffer areas believe no activity can occur in these areas without harm occurring to a wetland or watercourse. In their view, an automatic "no activity" zone is necessary to buffer the resource from adverse impacts. But in fact, under current law, proposed activity even in a wetland or watercourse is allowed if it can be shown that there would be no likely adverse harm to the resource.
Rather than an automatic "no activity" zone, property owners should be allowed to prove that a proposed activity will not adversely impact a wetland or watercourse. Thus, "upland review areas" is a more appropriate term to signify that proposed activities in these areas should be reviewed and not barred automatically.
Links below are to research and policy arguments concerning "buffer" areas:
UConn CLEAR (Center for Land Use Education and Research) 2006 Statewide Riparian Buffer Analysis - released Dec. 7, 2009. Comparing development cover in 100 foot and 300 foot "buffer" corridors next to all watercourses demonstrates little development has taken place near watercourses between 1985 and 2006. In other words, the current inland wetlands and watercourses act is very effective at keeping development away from watercourses. No new authority for municipal inland wetland commissions is necessary.
Riparian and Wetland Buffers for Water-Quality Protection (Stormwater, the Journal for Surface Water Quality Professionals, November-December, 2009) - an article that examines riparian buffers' impacts on water-quality and concludes, "Well-planned developments incorporating "averaged” vegetated buffers of 50 feet or less, combined with shared BMP treatment trains, may be more protective of riparian and wetland ecosystem values than the much larger buffers required by some regional and local regulations."
For five years, from 2007 to 2011, the state legislature considered various proposals that would have either expanded the jurisdiction of local inland wetland and watercourses commissions or throw out decades of law regarding appeals to courts from commission decisions. Earlier attempts to expand the law were also made in 2004 and other years. All are anti-property owner, anti-business and anti-housing and, just as importantly, none are necessary to protect wetlands or watercourses. Because there was little change of membership on the State Legislature's Environment Committee during that time, the Environment Committee refused to listen to reason and common sense by overwhelmingly passing these bills out of committee. Fortunately, the legislative process doesn't end with one committee and the HBRA of CT successfully defeated these unworkable, poorly written and unnecessary bills each of these years. We have urged leadership to tell the Environment Committee not to pursue this legislation. Fortunately, in 2013, new House committee leadership exhibited more common sense and was much more understanding of our position. However, we expect the proponents of "buffer" areas and other restrictions on property rights to never rest and the HBRACT will remain vigilant to guard against unnecessary legislation.
See the HBRA's testimony to the Environment Committee on 2-23-09 (the HBA filed similar testimony each year on similar bills):
And, from 2008, opposing a 100' buffer area on both sides of watercourses:
See Watercourse mapping from UConn to see how a 100' buffer area would affect CT.
See also DEEP's Water Quality Classifications for the state's waters.
Current law already clearly states that a local wetland commission can regulate and prohibit almost any activity that is likely to adversely affect any wetland or watercourse. This is the low threshold commissions must meet. Yet, the legislature continued to consider adopting language offered by the CT Fund for the Environment (CFE), which states that any regulated activity must show no adverse impact "on the area around wetlands or watercourses.” This is an expansion of jurisdiction, pure and simple. It essentially allows commissions to assume an adverse impact on a wetland or watercourse itself, without any evidence in the record - or even in the face of evidence showing no adverse impact to the wetland or watercourse. Thus, not even a minimal threshold must be met. CFE's testimony before the Environment Committee has stated that its language "does not create any new regulated areas” and this is blatantly false.
Given that CT uses a definition of "wetland" that is the broadest in the nation (more than double the amount of land covered by wetlands as defined by the federal Clean Water Act), and current state law allows a low threshold to impose regulations on private activity, including the prohibition of activity if there is likely to be any adverse impact to a wetland or watercourse, the expansion of local wetland commission jurisdiction supported by CFE and entertained by the Environment Committee in past years is unwarranted and anti-property owner. This is environmental over-reaching at its worst. We urge the state legislature to not adopt these bills.
Check with your land use or environmental counsel for any updates to laws and regulations.