Issue 1.3 December 2013  
 A Newsletter for 
 Municipal Inland Wetlands Agencies 
   CT Department of Energy and Environmental Protection, Inland Water Resources Division

Happy Holidays!  
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Welcome to the third edition of the DEEP's Wetlands Management Section e-newsletter tailored for municipal inland wetlands agencies.  This newsletter will allow the Wetlands Management Section to provide timely announcements, updated guidance, and share information.  All e-newsletters are archived and available on the Wetlands Management Section's e-newsletter web page.  Please forward this newsletter to town staff, fellow commission members, or others that may find the information helpful.  To join our mailing list please see the link at the bottom of this e-newsletter.  

Annual Legislation and Regulation Advisory
For 2013
Each year the Connecticut General Assembly convenes to debate and pass bills which either create new laws or amend existing laws.  Often the Connecticut Inland Wetlands and Watercourses Act ("Act") is amended during these annual legislative sessions. When the Act is amended the DEEP's Wetlands Management Section mails a legislation and regulation advisory to every municipal inland wetlands agency noting where the law was changed, and also describing how an inland wetlands agency should amend their regulations to be in conformance with the Act.  These advisories are typically mailed in September or October of each year.  In 2013 the Connecticut General Assembly did NOT pass any amendments to the Act. Therefore the DEEP Wetlands Management Section did not mail an advisory.  Past legislation and regulation advisories, for years 2006 through 2012, are available on the DEEP Wetlands Management Section's "Legislation, Regulations & Case Law" webpage.  The 2014 legislative session will convene in February.  If any changes are made to the Inland Wetlands and Watercourses Act that warrants an advisory to municipal inland wetlands agencies, the advisory will be mailed by late October 2014. 

Municipal Inland Wetlands Agency Permits
Permit Expiration Flow-Chart Revised!
In 2012 the DEEP's Wetlands Management Section produced a permit expiration flow-chart to assist municipal inland wetlands agencies in understanding the various time frames associated with inland wetlands permits.  The flow chart has been revised to correct a mistake.  The new flow chart is available on the Wetlands Management Section's "Legislation, Regulations & Case Law" webpage.  Please scroll to the middle of the page where you will find the revised flow chart under the "Legislation and Regulation Advisories" heading.

Public Meeting v. Public Hearing: 
Additional Thoughts...
In the September 2013 issue of A Newsletter for Municipal Inland Wetlands Agencies, an article appeared regarding public meetings versus public hearings.  The article's last sentence stated: "If the public is allowed to speak at a regularly scheduled meeting on the merits of an application before the agency, then the agency has turned such meeting into a public hearing for that particular application without meeting the criteria or requirements of both the Inland Wetlands and Watercourses Act or the Freedom of Information Act."  This comment, which was more of a reflection upon the basic structure of inland wetlands and watercourses regulation under our enabling act, the Inland Wetlands and Watercourses Act ("Act"), has generated a number of questions and comments.  It is hoped this follow-up article will answer those questions and alleviate concerns about how public meetings are conducted in compliance with the Act.


Municipal inland wetlands agencies conduct most of their business in regularly scheduled public meetings that are not public hearings.  During these meetings agencies may provide for a public comment period on their publically noticed agenda.  This agenda item presents a limited but important opportunity for members of the public to interact with the agency: for example, to ask procedural questions or bring potential violations to the agency's attention.  If at a regularly scheduled meeting there are members of the public present who are interested in an application currently before the municipal inland wetlands agency for consideration, the chair, at his/her sole discretion, may grant the courtesy of allowing a person in attendance to be heard.  That person's comments or questions should be limited, however, to those matters that will help the public understand basic facts about what is being proposed (i.e., who, what, when and where - who is the applicant, what is the address of the project, or when will the project start).   The willingness of a municipal inland wetlands agency to entertain public comments of this sort at a regularly scheduled meeting during which applications or other matters are being considered does NOT automatically in fact or law convert the meeting into a public hearing.


If the chair grants the courtesy of allowing members of the public to speak at a regularly scheduled meeting during the agency's consideration of discrete agenda items such as, for example, an application for a permit to conduct regulated activities, the public's comments and/or questions should NOT be related to the MERITS of the application currently being considered by the agency.  Comments and/or questions regarding the merits of an application include: reasons an application should be denied; suggested changes to the application's proposal(s); or observations about the site of the proposed regulated activity.  The only time a municipal inland wetlands agency should take comments on the merits of an application currently before the agency is at a public hearing duly noticed as such.  If there is a large number of people present at a regularly scheduled meeting who want to speak on a particular application, or even if there are a few people but their comments address the merits of an application, this should be an indication that the application would likely benefit from a public hearing format.  The municipal inland wetlands agency needs to be sensitive to their responsibilities under the Act, and should determine as early in the process as possible if a public hearing is warranted. 


Remember, the Act in section 22a-42a(c)(1) states that an agency shall NOT hold a public hearing on an application UNLESS IT DETERMINES: 1) the proposed activity may have a significant impact on wetlands or watercourses; 2) a petition signed by at least twenty-five persons who are eighteen years of age or older and who reside in the municipality in which the regulated activity is proposed requests a hearing and is filed with the agency not later than fourteen days after the date of receipt of such application; or 3) the agency finds that a public hearing regarding such application would be in the public interest.  These are formal legal prerequisites to engaging the public hearing process, because the Act expresses a preference for the selective use of the public hearing procedure.  The municipal inland wetlands agency must first "determine" and only then formally notice a public hearing in accordance with the Act's procedures.  The agency should not allow a de facto public hearing-type proceeding to develop.  Remember that "fundamental fairness" is the guiding principle behind the use of procedures mandated by the Act in the proper discharge of the agency's legal functions.  There are certain "procedural expectations" that are critical to achieving such fairness: that the agency has assessed the application; that the applicant knows whether to prepare for a public hearing; and whether the public expects to prepare to attend a public hearing.  Public meetings that "morph" into de facto public hearings unsettle all of these procedural expectations.   


Finally, if an application currently before a municipal inland wetlands agency HAS been scheduled for a public hearing, then it is not only best to defer all questions and comments on that particular application to the public hearing, but it is also legally required.      

New Online Survey
Don't Forget to Let Us Know How We Are Doing!
The DEEP's Wetlands Management Section has made an effort over the last five years to create a user friendly website that provides Connecticut's municipal inland wetlands agencies with information on training, regulations, guidelines and other technical resources; as well as educate Connecticut's citizens regarding wetland and watercourse management and protection. The Wetlands Management Section wants to know how we can improve.  Please take a few moments to complete this survey.

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