Cautionary Note Public Act 04-209 does not amend the definition of “Wetlands” or “Watercourses” as noted in sections 22a-38(15) and 22a-38(16) of the IWWA. The inclusion of aquatic, plant or animal life and habitats in wetlands and watercourses is limited in application to section 22a-41 of the IWWA. Therefore, the DEP is only modifying section 10 of the IWWMR because such is the only section of the IWWMR relevant to the factors for consideration as noted in section 22a-41 of the IWWA. Municipal Inland Wetlands Agencies should not propose any amendments to the definitions of wetlands or watercourses as a result of Public Act 04-209. Please see DEP Advisory below.

To: Connecticut’s Municipal Inland Wetlands Agencies
From: Yvonne Bolton, Acting Bureau Chief Bureau of Water Management
Date: November 29, 2004
Re: 2004 Legislation and Regulations Advisory

The 2004 Legislature amended section 22a-41 of the Inland Wetlands and Watercourses Act (IWWA) with the passage of Public Act 04-209. The changes involve the consideration of aquatic, plant or animal life in the factors for consideration. Public Act 04-209 was signed by the Governor and went into effect on June 3, 2004.

To assist Municipal Inland Wetlands Agencies in amending their regulations, we are providing the Public Act language with the suggested revisions to the Inland Wetlands and Watercourses Model Regulations (IWWMR).

Inland Wetlands Agencies should plan to revise their regulations in the near future to conform to the new statute. The provisions of Public Act 04-209 govern until such time that your municipal regulations are amended. _______________________________________________________________________ Please note that new text has been underlined.

Public Act 04 –209 – An Act Concerning Jurisdiction of Municipal Inland Wetlands Commissions This Public Act has amended section 22a-41 of the IWWA with the addition of new subsections (c) and (d) to read as follows:

(c) For purposes of this section, (1) “wetlands or watercourses” includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) “habitats” means areas or environments in which an organism or biological population normally lives or occurs.

(d) A municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses.

In order to conform to these revisions, the following changes to the IWWMR are made:

1. Section 10.5 of the IWWMR is deleted and replaced with the following:
   10.5 For purposes of this section, (1) “wetlands or watercourses” includes aquatic, plant or animal life and habitats in wetlands or watercourses, and (2) “habitats” means areas or environments in which an organism or biological population normally lives or occurs.
   
   
2. A new section 10.6 of the IWWMR is added to read as follows:
   10.6 A municipal inland wetlands agency shall not deny or condition an application for a regulated activity in an area outside wetlands or watercourses on the basis of an impact or effect on aquatic, plant, or animal life unless such activity will likely impact or affect the physical characteristics of such wetlands or watercourses.
   
   
3. A new section 10.7 of the IWWMR is added to read identical to the language of the prior section 10.5 of the IWWMR as follows: 10.7 In reaching its decision on any application after a public hearing, the Agency shall base its decision on the record of that hearing. Documentary evidence or other material not in the hearing record shall not be considered by the Agency in its decision. A conclusion that a feasible and prudent alternative does not exist does not create a presumption that a permit should be issued. The applicant has the burden of demonstrating that his application is consistent with the purposes and policies of these regulations and sections 22a-36 to 22a-45, inclusive, of the Connecticut General Statutes.

Should you have any further questions regarding the above changes, please feel free to contact the Wetlands Management Section. You can call the Wetlands Management Section at (860) 424-3019 or write to us at: Department of Environmental Protection, Inland Water Resources Division, 79 Elm Street, Hartford, CT 06106-5127.

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