Conn. Gen. Stat. § 22a-361

Current with legislation from the 2024 Regular and Special Sessions.

Section 22a-361 - (Formerly Sec. 25-7d). Permit for dredging, structures, placement of fill, obstruction or encroachment, or mooring area or facility. Regulations. General permits. Removal of sand, gravel or other material. Fees. Prohibited docks or structures

(a)

(1) No person, firm or corporation, public, municipal or private, shall dredge, erect any structure, place any fill, obstruction or encroachment or carry out any work incidental thereto or retain or maintain any structure, dredging or fill, in the tidal, coastal or navigable waters of the state waterward of the coastal jurisdiction line until such person, firm or corporation has submitted an application and has secured from the Commissioner of Energy and Environmental Protection a certificate or permit for such work and has agreed to carry out any conditions necessary to the implementation of such certificate or permit.

(A) Except as provided in subdivision (3) of this subsection, each application for a permit, except for an emergency authorization, for any structure, filling or dredging which uses or occupies less than five thousand five hundred square feet in water surface area based on the perimeters of the project shall be accompanied by a fee equal to eighty cents per square foot provided such fee shall not be less than six hundred sixty dollars.

(B) Except as provided in subdivision (3) of this subsection, each application for a permit for any structure, filling or dredging which uses or occupies five thousand five hundred square feet or more but less than five acres in water surface area based on the perimeters of the project shall be accompanied by a fee of three thousand five hundred fifty dollars plus ten cents per square foot for each square foot in excess of five thousand five hundred square feet.

(C) Except as provided in subdivision (3) of this subsection, each application for a permit for any structure, filling or dredging which uses or occupies five or more acres in water surface area based on the perimeters of the project shall be accompanied by a fee of nineteen thousand four hundred seventy-five dollars plus five hundred twenty-five dollars per acre for each acre or part thereof in excess of five acres.

(D) Except as provided in subdivision (3) of this subsection, each application for a mooring area or multiple mooring facility, regardless of the area to be occupied by moorings, shall be accompanied by a fee of six hundred sixty dollars provided that such mooring areas or facilities shall not include fixed or floating docks, slips or berths.

(E) Application fees for aquaculture activities shall not be based on areal extent.

(2) The commissioner may waive or reduce any fee payable pursuant to subdivision (1) of this subsection for (A) a tidal wetlands or coastal resource restoration or enhancement activity, (B) experimental activities or demonstration projects, (C) nonprofit academic activities, or (D) public access activities in tidal, coastal or navigable waters, provided no fee shall be waived or reduced for activities required by statute, regulation, permit, order or enforcement action. The application fee for the retention of a structure built in violation of this subsection where such structure is ineligible for a certificate of permission under section 22a-363b, shall be four times the fee calculated in accordance with subparagraphs (A) to (D), inclusive, of subdivision (1) of this subsection. The commissioner may lower any such fee based upon the commissioner's finding of significant extenuating circumstances, including, but not limited to, whether the applicant acquired such real estate interest in the work site after the date of the unauthorized activity and is not otherwise liable for the unauthorized activity as a result of actions taken prior to the acquisition and did not know and had no reason to know of the unauthorized activity. As used in this section, "resource restoration or enhancement activity" means an action taken to return a wetland or coastal resource to a prior natural condition or to improve the natural functions or habitat value of such resource, but shall not include actions required pursuant to an enforcement action of the commissioner, and "public access activities" means activities whose principal purpose is to provide or increase access for the general public to tidal, coastal or navigable waters, including, but not limited to, boardwalks, boat ramps, observation areas and fishing piers.

(3) The commissioner may adopt regulations in accordance with the provisions of chapter 54 to vary the permit fees described in subdivision (1) of this subsection and the cost of public notice required pursuant to section 22a-6h, provided such regulations shall contain a simplified schedule that promotes expedited approval of applications that are consistent with all applicable standards and criteria. In the event the commissioner adopts such regulations, such permit fees shall be the amount established in such regulations.

(b)

(1) The commissioner, at least thirty days before approving or denying an application for a permit, shall provide or require the applicant to provide notice by certified mail, return receipt requested, or by electronic means to the applicant, to the Connecticut Port Authority, as appropriate, the Attorney General and the Commissioner of Agriculture and to the chief executive officer, the chairpersons of the planning, zoning, harbor management and shellfish commissions of each town in which such structure, fill, obstruction, encroachment or dredging is to be located or work to be performed, and to the owner of each franchised oyster ground and the lessee of each leased oyster ground within which such work is to be performed and shall publish such notice once in a newspaper having a substantial circulation in the area affected. Such notice shall contain (A) the name of the applicant; (B) the location and nature of the proposed activities; (C) the tentative decision regarding the application; and (D) any additional information the commissioner deems necessary. There shall be a comment period following the public notice during which interested persons may submit written comments. The commissioner may hold a public hearing prior to approving or denying an application if, in the commissioner's discretion, the public interest will best be served by holding such hearing. The commissioner shall hold a public hearing if the commissioner receives:

(i) A written request for such public hearing from the applicant, or

(ii) a petition, signed by twenty-five or more persons requesting such public hearing on an application, unless the regulated activity is a transportation capital project subject to the provisions of subdivisions (2) and (3) of this subsection. Following such notice and comment period and public hearing, if applicable, the commissioner may, in whole or in part, approve, modify and approve or deny the application. The commissioner shall provide to the applicant and the persons set forth above, by certified mail, return receipt requested, or by electronic means, notice of the commissioner's decision. If the commissioner requires the applicant to provide the notice specified in this subdivision, the applicant shall certify to the commissioner, not later than twenty days after providing such notice, that such notice has been provided in accordance with this subdivision. Any person who is aggrieved by the commissioner's final decision on such application may appeal such decision to the Superior Court in accordance with section 4-183.

(2) If the proposed activity is a transportation capital project and (A) such project is not located at an airport, as defined in section 15-34, (B) the federal government requires public participation regarding such activity, (C) the person proposing to conduct or cause to be conducted such activity sought public input on such activity by implementing a plan approved by an agency of the federal government, and (D) such person submits to the commissioner a copy of the approved plan for public participation, a written summary of the opportunities for public participation that were provided and a copy or record of any comments received regarding such activity and how such comments were responded to or addressed, the commissioner shall only be required to hold a public hearing on such application, upon receipt of a petition, signed by at least twenty-five persons, that alleges aggrievement or unreasonable pollution or destruction of the public trust.

(3) For the purposes of subdivision (2) of this subsection, a petition alleges aggrievement or unreasonable pollution or destruction of the public trust if the petition sets forth specific facts that demonstrate that the legal rights, duties or privileges of at least one person who signed the petition will be, or may reasonably be expected to be, affected by such activity, or that alleges that the activity involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state. Any such petition shall identify the relevant statutory or regulatory provision that the petitioners claim such activity does not satisfy. The commissioner shall provide a copy of any such petition received to the person proposing to conduct or cause to be conducted such activity, who, not more than seven business days after receipt of such petition, may object to such petition on the basis that the petition does not contain the specific factual demonstration required by this subdivision. The commissioner shall determine whether the petition satisfies the requirements of this subdivision and shall send notice of such determination, in writing, to the person proposing to conduct or cause to be conducted such activity and the person who submitted the petition.

(4) Nothing in this subsection shall be construed to modify or limit any requirement of sections 22a-1a to 22a-1h, inclusive, concerning a public scoping process, a public hearing or public participation.

(c) The Commissioner of Energy and Environmental Protection may adopt regulations, in accordance with the provisions of chapter 54, to carry out the provisions of sections 22a-359 to 22a-363, inclusive. Such regulations shall establish the procedures for reviewing and acting upon applications for permits, certificates of permission and emergency authorizations. The regulations shall be consistent with sections 22a-28 to 22a-35, inclusive, and regulations adopted thereunder, sections 22a-90 to 22a-100, inclusive, and sections 22a-113k to 22a-113t, inclusive. They shall establish criteria for granting, denying, limiting, conditioning or modifying permits giving due regard for the impact of regulated activities and their use on the tidal, coastal or navigable waters of the state, adjoining coastal and tidal resources, tidal wetlands, navigation, recreation, erosion, sedimentation, water quality and circulation, fisheries, shellfisheries, wildlife, flooding and other natural disasters and water-dependent use opportunities as defined in section 22a-93. The regulations may provide for consideration of local, state and federal programs affecting tidal, coastal and navigable waters of the state and the development of the uplands adjacent thereto and may set forth informational material describing general categories of regulated activities for the purpose of providing permit applicants with a more explicit understanding of the regulations. Such informational material shall be consistent with and shall not increase the discretion granted to the commissioner under the policies, standards and criteria contained in sections 22a-359, 22a-92 and 22a-93 and this section.

(d)

(1) The Commissioner of Energy and Environmental Protection may issue a general permit for any minor activity regulated under sections 22a-28 to 22a-35, inclusive, or sections 22a-359 to 22a-363f, inclusive, if the commissioner determines that such activity would (A) cause minimal environmental effects when conducted separately, (B) cause only minimal cumulative environmental effects, (C) not be inconsistent with the considerations and the public policy set forth in sections 22a-28 to 22a-35, inclusive, and section 22a-359, as applicable, (D) be consistent with the policies of the Coastal Management Act, and (E) constitute an acceptable encroachment into public lands and waters. Such activities may include routine minor maintenance and routine minor repair of existing structures, fill, obstructions, encroachments or excavations; substantial maintenance consisting of rebuilding, reconstructing or reestablishing to a preexisting condition and dimension any structure, fill, obstruction, encroachment or excavation; maintenance dredging of areas which have been dredged and continuously maintained as serviceable; activities allowed pursuant to a perimeter permit; the removal of structures, derelict vessels, debris, rubbish or similar discarded material or unauthorized fill material; minor alterations or amendments to authorized activities consistent with the authorization for such activities; activities which have been required or allowed by an order of the commissioner; open water marsh management by or under the supervision of the Department of Public Health or the Department of Energy and Environmental Protection; conservation activities of or under the supervision or direction of the Department of Energy and Environmental Protection; construction of individual residential docks which do not create littoral or riparian conflicts, navigational interference, or adverse impacts to coastal resources, as defined in section 22a-93, which are not located in tidal wetlands, as defined in section 22a-29, and which extend no further than forty feet waterward of mean high water or to a depth of minus four feet mean low water, whichever point is more landward; installation of scientific measuring or monitoring devices; survey activities including excavation of test pits and core sampling and driving of test pilings; construction of utility lines; aquacultural activities; and installation and removal of small seasonal structures including floats and moorings. Any person conducting an activity for which a general permit has been issued shall not be required to obtain an individual permit or certificate under any other provision of sections 22a-28 to 22a-35, inclusive, or sections 22a-359 to 22a-363f, inclusive, for that activity except as provided in subdivision (3) of this subsection. A general permit shall clearly define the activity covered thereby and may include such conditions and requirements as the commissioner deems appropriate, including, but not limited to, construction timing, methodologies and durations, resource protection practices, management practices, and verification and reporting requirements. The general permit may require any person proposing to conduct any activity under the general permit to register such activity, including obtaining approval from the commissioner, before the general permit becomes effective as to such activity. Registrations and applications for approval under the general permit shall be submitted on forms prescribed by the commissioner. Any approval by the commissioner under a general permit may include conditions specific to the proposed activity to ensure consistency with the requirements for issuance of the general permit. The commissioner shall prepare, and annually amend, a list of holders of general permits under this section, which list shall be made available to the public.

(2) Notwithstanding any other procedures specified in sections 22a-28 to 22a-35, inclusive, and sections 22a-359 to 22a-363f, inclusive, any regulations adopted thereunder, and chapter 54, the commissioner may issue a general permit in accordance with the following procedures:

(A) The commissioner shall publish in a newspaper having a substantial circulation in the affected area or areas notice of intent to issue a general permit;

(B) the commissioner shall allow a comment period of thirty days following publication of such notice during which interested persons may submit written comments concerning the permit to the commissioner and the commissioner shall hold a public hearing if, within said comment period, he receives a petition signed by at least twenty-five persons;

(C) the commissioner may not issue the general permit until after the comment period;

(D) the commissioner shall publish notice of any permit issued in a newspaper having substantial circulation in the affected area or areas; and

(E) summary suspension may be ordered in accordance with subsection (c) of section 4-182. Any person may request that the commissioner issue, modify or revoke a general permit in accordance with this subsection.

(3) Subsequent to the issuance of a general permit, the commissioner may require any person whose activity is or may be covered by the general permit to apply for and obtain an individual permit or certificate under the provisions of sections 22a-28 to 22a-35, inclusive, or sections 22a-359 to 22a-363f, inclusive, for all or any portion of the activities covered by the general permit, if the commissioner determines that an individual permit is necessary to assure consistency with purposes and policies of such sections, and the Coastal Management Act. The commissioner may require an individual permit under this subdivision in cases including, but not limited to, the following:

(A) The permittee is not in compliance with the conditions of the general permit;

(B) an individual permit or certificate is appropriate because of circumstances specific to the site;

(C) circumstances have changed since the time the general permit was issued so that the permitted activity is no longer acceptable under the general permit; or

(D) a change has occurred in relevant law. The commissioner may require an individual permit or certificate under this section only if the affected person has been notified in writing that an individual permit or certificate is required. The notice shall include a brief statement of the reasons for the decision.

(4) The commissioner may adopt regulations, in accordance with the provisions of chapter 54, to carry out the purposes of this section.

(e)

(1) No person, firm or corporation, public, municipal or private, who removes sand, gravel or other material lying waterward of the mean high water mark of the tidal, coastal or navigable waters of the state pursuant to a permit issued under this section on or after October 1, 1996, shall make any beneficial or commercial use of such sand, gravel or other material except upon payment to the state of a fee. Such payment shall be made at times and under conditions specified by the commissioner in such permit, provided the commissioner may waive such payment for the beneficial or commercial use of sand, gravel, or other material that such person, firm or corporation decontaminates or processes to meet applicable environmental standards for reuse. No fee shall be assessed for (A) the performance of such activities on land which is not owned by the state, (B) the use of sand, gravel or other materials for beach restoration projects, or (C) ultimate disposal of such sand, gravel or other materials which does not result in an economic benefit to any person. For the purposes of this subdivision, "beneficial or commercial use" includes, but is not limited to, sale or use of sand, gravel or other materials for construction, aggregate, fill or landscaping. The commissioner may adopt regulations, in accordance with the provisions of chapter 54, establishing the amount of the fee required pursuant to this subsection. Such fee shall be four dollars per cubic yard of such sand, gravel and other material until such time as the commissioner adopts such regulations.

(2) The commissioner may require that any person, firm or corporation, public, municipal or private, who removes sand, gravel or other material lying waterward of the mean high water mark of the tidal, coastal or navigable waters shall make available such sand, gravel or other material of appropriate grain size and composition to any coastal municipality or to any district established pursuant to chapter 105 or by special act to plan, lay out, acquire, construct, reconstruct, repair, maintain, supervise and manage a flood prevention, climate resilience and erosion control system. Such sand, gravel or other material shall be offered for the purposes of an appropriately authorized beach nourishment or habitat restoration project and shall be available (A) to municipalities for the cost of transporting such sand, gravel or other material, and (B) to districts for a reasonable fee.

(f) When any damage may arise to any person, firm or corporation from the taking of sand, gravel or other material as provided in subsection (e) of this section and the applicant authorized by the commissioner to take sand, gravel or other material cannot agree with such person, firm or corporation as to the amount of damage which may result from such taking, the commissioner shall require the applicant, as a condition precedent to the taking of sand, gravel or material pursuant to any permit hereunder, to post bond, with good and sufficient surety, or to deposit such sum with the State Treasurer, for the protection of any person, firm or corporation claiming damage which may result from such taking, as the commissioner determines sufficient to cover all damages, including interest from the date of the taking, which could reasonably result to any person, firm or corporation from such taking.

(g) The procedure for the subsequent determination of the amount of actual damage shall be as follows: The commissioner shall prefer a petition to the superior court for the judicial district of Hartford or to a judge thereof in vacation, praying that the amount of such damage may be determined. Such petition shall be accompanied by a summons signed by competent authority, to be served as process in civil action before said court, notifying the applicant and any person, firm or corporation claiming damage from the taking, to appear before said court or such judge, and thereupon said court or judge shall appoint a committee of three disinterested persons, one of whom may be a state referee, who shall be sworn before commencing their duties. Such committee, after giving reasonable notice to all parties of the time and place of hearing, shall hear and receive evidence from all parties concerning the damage and shall make an award. Such committee shall make a report of its doings and the award to said court or such judge, who may accept such report or reject it for irregular or improper conduct by the committee in the performance of its duties. If the report is rejected, the court or judge shall appoint another committee, which shall proceed in the same manner as the first committee was required to proceed. If the report is accepted, such acceptance shall have the effect of a judgment and the applicant shall pay the amount of any such award to the clerk of the Superior Court for the account of the persons entitled thereto within sixty days after the judgment is entered or, in the case of an appeal, after the final judgment. Any party may, within sixty days, appeal such judgment in the manner provided by law.

(h) Notwithstanding any other provision of this section, the commissioner shall not issue a certificate or permit to authorize any dock or other structure in an area that was designated as inappropriate or unsuitable for such dock or other structure in a harbor management plan approved and adopted pursuant to section 22a-113m.

Conn. Gen. Stat. § 22a-361

(1963, P.A. 569, S. 3; February, 1965, P.A. 587; 1969, P.A. 768, S. 256; 1971, P.A. 872, S. 59; P.A. 74-79; P.A. 78-102, S. 2; P.A. 87-495, S. 4; P.A. 88-230, S. 1, 12; P.A. 90-98, S. 1, 2; 90-111, S. 4; 90-231, S. 13, 28; P.A. 91-369 , S. 27 , 36 ; P.A. 92-162 , S. 9 , 25 ; P.A. 93-142 , S. 4 , 7 , 8 ; 93-381 , S. 9 , 39 ; 93-428 , S. 8 , 39 ; P.A. 94-85 , S. 2 ; P.A. 95-218 , S. 10 ; 95-220 , S. 4 -6; 95-257 , S. 12 , 21 , 58 ; P.A. 96-145 , S. 1 , 17 ; P.A. 97-124 , S. 8 , 16 ; P.A. 98-63 , S. 1 , 2 ; P.A. 03-263 , S. 5 ; June 30 Sp. Sess. P.A. 03-6, S. 128, 129, 146 (g), (h); P.A. 04-109 , S. 8 ; 04-189 , S. 1 ; June Sp. Sess. P.A. 09-3 , S. 417 ; P.A. 10-106 , S. 8 , 9 ; P.A. 11-80 , S. 1 ; P.A. 12-100 , S. 3 ; 12-101 , S. 6 ; P.A. 13-179 , S. 8 ; 13-209 , S. 6 , 13 ; June Sp. Sess. P.A. 15-5 , S. 35 ; P.A. 16-89 , S. 9 .)

Amended by P.A. 24-0081,S. 129 of the Connecticut Acts of the 2024 Regular Session, eff. 7/1/2024.

Amended by P.A. 21-0115, S. 16 of the Connecticut Acts of the 2021 Regular Session, eff. 7/1/2021.

Amended by P.A. 15-0005, S. 35 of the Connecticut Acts of the 2015 Special Session, eff. 7/1/2016.

Annotations to former section 25-7d: Issuance of permit not an adjudicative action by commission as to plaintiff, neighbor landowner of permittee, and as to neighbors due process does not require hearing before issuance of permit. 157 Conn. 528 . Applications for dredging under section and filling under Sec. 25-7b (22a-359) could be heard together by water resources commission. 159 Conn. 82 . Power to make regulations need not be exercised; failure to provide for public hearings is not constitutionally repugnant as long as there are provisions for hearing before final determination. 161 Conn. 50 . Cited. 168 C. 365 ; 175 Conn. 483 ; 177 C. 287 . Owner of upland adjoining tidewater cannot construct piers which will interfere with free and unobstructed use of navigable waters by the public and the right of other upland owners to use such waters for access to their lands. 21 Conn.Supp. 407 . Cited. 29 Conn.Supp. 298 . Annotations to present section: Cited. 215 Conn. 616 ; 232 Conn. 401 . The phrase "work incidental thereto" in Subsec. (a)(1) necessarily refers to one of the enumerated activities that precede that phrase, and it is clear that the qualification "waterward of the high tide line" applies equally and independently to each of the regulated activities; the term "incidental" in Subsec. (a)(1) refers to subordinate or nonessential work conducted in the course of erecting a structure or performing any other activity specified in Subsec. (a)(1); department has not demonstrated its authority under section to order removal of any portion of plaintiff's seawall that is not waterward of high tide line. 305 Conn. 681 . Because 2003 revision of Subsec. (a) is written in the disjunctive, department can assert jurisdiction over a structure if it is located in either tidal, coastal or navigable waters and waterward of the high tide line; "tidal waters" means of or relating to tides, caused by tides or having tides, and "tide" means the alternate rising and falling of the surface of the ocean and of gulfs, bays, estuaries and other water bodies connected with the ocean that occurs twice a day over most of the earth and is caused by the gravitational attraction of the sun and moon occurring unequally on different parts of the earth. 308 Conn. 359 . Cited. 15 CA 458 . Cited. 43 Conn.Supp. 386 .

See Sec. 22a-6l re posting of notice of permit applications. See Sec. 22a-27i re exemption of municipality for one year. See Sec. 22a-363a re definitions.