2019 Connecticut General Statutes
Title 22a - Environmental Protection
Chapter 440 - Wetlands and Watercourses
Section 22a-41 - Factors for consideration of commissioner. Finding of no feasible and prudent alternative. Wetlands or watercourses. Habitats. Jurisdiction of municipal inland wetlands agencies.

(a) In carrying out the purposes and policies of sections 22a-36 to 22a-45a, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:

(1) The environmental impact of the proposed regulated activity on wetlands or watercourses;

(2) The applicant's purpose for, and any feasible and prudent alternatives to, the proposed regulated activity which alternatives would cause less or no environmental impact to wetlands or watercourses;

(3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses;

(4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity, including the extent to which such activity would foreclose a future ability to protect, enhance or restore such resources, and any mitigation measures which may be considered as a condition of issuing a permit for such activity including, but not limited to, measures to (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;

(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity; and

(6) Impacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses.

(b) (1) In the case of an application which received a public hearing pursuant to (A) subsection (k) of section 22a-39, or (B) a finding by the inland wetlands agency that the proposed activity may have a significant impact on wetlands or watercourses, a permit shall not be issued unless the commissioner finds on the basis of the record that a feasible and prudent alternative does not exist. In making his finding, the commissioner shall consider the facts and circumstances set forth in subsection (a) of this section. The finding and the reasons therefor shall be stated on the record in writing.

(2) In the case of an application which is denied on the basis of a finding that there may be feasible and prudent alternatives to the proposed regulated activity which have less adverse impact on wetlands or watercourses, the commissioner or the inland wetlands agency, as the case may be, shall propose on the record in writing the types of alternatives which the applicant may investigate provided this subdivision shall not be construed to shift the burden from the applicant to prove that he is entitled to the permit or to present alternatives to the proposed regulated activity.

(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.

(1972, P.A. 155, S. 6; P.A. 87-533, S. 4, 14; P.A. 96-157, S. 2; 96-269, S. 3, 4; P.A. 04-209, S. 1; P.A. 05-288, S. 94.)

History: P.A. 87-533 added Subsec. (b) requiring the commissioner to find that a feasible and prudent alternative does not exist prior to issuing a permit for an application which received a public hearing; P.A. 96-157 amended Subsec. (a) to modify the enumerated factors for consideration and amended Subsec. (b) to provide conditions for hearings governed by that subsection, to provide that findings re feasible and prudent alternatives be on the basis of the record and to add Subdiv. (2) re proposal of alternatives by the agency; P.A. 96-269 changed effective date of P.A. 96-157 from October 1, 1996, to January 1, 1997, effective June 12, 1996; P.A. 04-209 added new Subsec. (c) defining wetlands or watercourses and habitats and new Subsec. (d) re jurisdiction of municipal inland wetlands agencies, effective June 3, 2004; P.A. 05-288 made technical changes in Subsec. (b)(1), effective July 13, 2005.

Cited. 179 C. 250; 180 C. 421; Id., 692; 183 C. 532; 186 C. 67. Under statute, a local inland wetlands agency must take into account the environmental impact on the regulated area that is pertinent, not the environmental impact in general. 192 C. 247. Cited. 196 C. 218; 203 C. 525; 209 C. 544; Id., 652; 211 C. 416; 212 C. 710; Id., 727; 213 C. 604; 216 C. 320; 217 C. 164; 218 C. 703; 219 C. 404; 220 C. 362; Id., 476; 222 C. 98; 226 C. 227; Id., 579; 228 C. 95; 229 C. 247; Id., 227; Id., 654; 242 C. 335.

Cited. 4 CA 271; 5 CA 70; 6 CA 715; 12 CA 47; 15 CA 336; 18 CA 440; 19 CA 334; Id., 713; 20 CA 309; 21 CA 122; 24 CA 708; 25 CA 446; Id., 572; 26 CA 564; 27 CA 214; Id., 590; 28 CA 262; Id., 435; Id., 780; 29 CA 12; Id., 105; 30 CA 85; 31 CA 105; Id., 599; judgment reversed, see 229 C. 627; 32 CA 799; 34 CA 385; 36 CA 270; 37 CA 166; 43 CA 227. Although the act protects the physical characteristics of wetlands and not wildlife, there was substantial evidence in the record that the loss of wood frogs would have a negative consequential effect on the physical characteristics of the wetlands, which falls squarely within the commission's jurisdiction. 122 CA 644. Inland wetlands and watercourses commission did not have to reconsider enumerated factors when considering a modified application because it had already considered the factors in approving the original application. 124 CA 489.

Cited. 35 CS 145. Section does not mandate specific reference in the finding and conclusion to any one of the 6 factors or a “balancing test”. 36 CS 1. Cited. 41 CS 444; 42 CS 57.

Subsec. (a):

Subdiv. (4): Mitigation measures are an integral component in the process of approving a permit that seeks to destroy wetland or watercourse resources; trial court improperly concluded that inland wetlands commission could accept payment of money and in-kind services as mitigation for destruction of wetlands and since the condition of the payment of money and provision of in-kind services was integral to commission's decision to grant the permit, judgment of trial court was reversed and the case remanded with direction to sustain the appeal. 251 C. 269. Local wetlands and watercourses commission, in considering application for permit to conduct a regulated activity, must consider, among other things, any feasible and prudent alternatives to the proposed activity that would cause less or no environmental impact to wetlands or watercourses. 263 C. 572. It is the impact on the regulated area that is pertinent, not the environmental impact in general; inland wetlands agencies do not have jurisdiction to regulate activities that solely affect the wildlife that use the wetlands and watercourses without affecting the wetlands or watercourses themselves. 269 C. 57.

“All relevant facts” does not include adjacent land when proposed development does not have a significant impact on the wetlands and watercourses. 49 CA 95. Subdiv. (2): Requirement that applicant present feasible and prudent alternatives to proposed regulated activity is mandatory rather than directory. 183 CA 280.

Subsec. (b):

Subdiv. (2): Requirement that applicant present feasible and prudent alternatives to proposed regulated activity is mandatory rather than directory. 183 CA 280.

Subsec. (d):

Only inland wetlands commission may make factual determination of whether physical characteristics of the wetlands are impacted and commission cannot make such determination without information about wildlife; there was substantial evidence to support finding that application that omitted information about wildlife was incomplete. 293 C. 93.