Conn. Agencies Regs. § 26-141b-5 - Adoption of river or stream system classifications

(a) The commissioner, after consultation with the Commissioner of Public Health, shall prepare a map of proposed classifications indicative of the degree of human alteration of natural stream flow after consideration of the following factors:

(1) A river or stream segment that is immediately downstream of an existing dam that impounds a public water supply source registered or permitted in accordance with section 22a-365 to 22a-378a of the Connecticut General Statutes, or that intersects a Level A aquifer protection area as approved by the Commissioner pursuant to section 22a-354d of the Connecticut General Statutes shall not be classified as Class 1 or 2;

(2) A river or stream segment that is immediately downstream of an existing dam that impounds a water supply source registered or permitted in accordance with section 22a-365 to 22a-378a of the Connecticut General Statutes, other than a public water supply, shall not be classified as Class 1 or 2;

(3) Size and location of permitted and registered diversions within the watershed, to the extent that these diversions, if operated to the maximum extent allowed in accordance with the provisions of the permit or registration, may affect the physical characteristics of flow, volume or velocity of water in the stream channel or may alter the daily, seasonal or inter-annual flow characteristics of the river or stream system;

(4) Size and location of dams, reservoirs and other impoundments within the watershed, to the extent that these dams, reservoirs and other impoundments may affect the physical characteristics of flow, volume or velocity of water in the stream channel or may alter the daily, seasonal or inter-annual flow characteristics of the river or stream system;

(5) Size and location of return flows of water within the watershed, to the extent that these return flows may affect the physical characteristics of flow, volume or velocity of water in the stream channel or may alter the daily, seasonal or inter-annual flow characteristics of the river or stream system;

(6) Existing land cover in the upstream watershed, to the extent that human development and associated impervious land cover may affect the physical characteristics of flow, volume or velocity of water in the stream channel or may alter the daily, seasonal or inter-annual flow characteristics of the river or stream system;

(7) Planned land use in the upstream watershed, as contained in an applicable local or state plan, including the state plan of conservation and development, to the extent that future human development and associated impervious land cover may affect the physical characteristics of flow, volume or velocity of water in the stream channel or may alter the daily, seasonal or inter-annual flow characteristics of the river or stream system;

(8) Available data related to the distribution and abundance of plant and animal species, such as wild trout, which are dependent upon stream and riparian habitat;

(9) Available data related to the presence of anadromous fish runs or where anadromous fish are actively being restored or are targeted for restoration;

(10) Existence of trout management areas and other recreational resources;

(11) The location of stream gages operated and maintained by the U.S. Geological Survey that have been identified by the commissioner in consultation with the U.S. Geological Survey as hydrologic index reference gages;

(12) Wild or scenic water designation by the state or federal government, or waters predominately within state forests, wildlife management areas, natural heritage areas or other large contiguous areas protected for conservation purposes, including protection for public water supply purposes;

(13) River or stream systems or segments that are identified as a potential source of water supply in an approved coordinated water system plan prepared in accordance with section 25-33h of the Connecticut General Statutes or a water supply plan in effect as of the date of such mapping, to the extent that these potential water supply sources, if developed, may affect the physical characteristics of flow, volume or velocity of water in the stream channel or may alter the daily, seasonal or inter-annual flow characteristics of the river or stream system;

(14) River or stream systems or segments that are identified as a potential source of water supply in an approved coordinated water system plan prepared in accordance with section 25-33h of the Connecticut General Statutes or a water supply plan in effect as of the date of such mapping and where there has been a significant investment toward development of such potential source, including but not limited to capital expenditures, scientific or engineering studies or land acquisition cost, shall not be classified as Class 1 or 2;

(15) River or stream systems or segments that are identified by the Commissioner of Public Health pursuant to Section 59 of Public Act 11-242;

(16) Practicality of, and potential for, restoring stream flow patterns to achieve consistency with the Stream Flow Standards and Regulations due to the extent of prior channel modification or the impact of development and impervious cover in the watershed as of the date of such mapping;

(17) Publicly available data regarding the impact of stream classification on a community water supply's margin of safety; and

(18) Any other factor indicative of the degree of human alteration of natural stream flow.

(b) Public participation. After development of a map of proposed classifications, the commissioner shall provide notice to the public of the proposed classifications of such river or stream segments and offer opportunity for public comment.

(1) Notice of the proposed classifications and opportunity to comment shall be published in a newspaper with general circulation in the area within which the river or stream system is located, and on the department's web site.

(2) Notice shall also be provided to the following:

(A) The chief elected official in those municipalities within which the river or stream system is located;

(B) The executive director of the Council of Environmental Quality;

(C) The Commissioners of the Department of Public Health, Department of Agriculture, Department of Economic and Community Development, and the chairperson of the Public Utilities Regulatory Authority;

(D) The Secretary of the Office of Policy and Management;

(E) Persons, at any such person's last known address as filed with the department, holding a registration or permit issued by the department authorizing activities that are known or suspected to alter the flow of water in the system for which classifications have been proposed; and

(F) Regional planning organizations, as defined in section 4-124i of the Connecticut General Statutes.

(3) Procedure for submitting comments

(A) The public shall have no fewer than 90 days from the date of the newspaper publication of notice to submit comments to the commissioner on the proposed classification of any river or stream segment identified in such notice.

(B) The public may submit comments on the proposed classification of a specific river or stream system pertaining to, but not limited to, the following:

(i) the factors for consideration in subsection (a) of this section;

(ii) the impact of the proposed classification on any prior investment made to develop a permitted or registered diversion and the alternatives, if any, to the diversion including cost factors and feasibility of such alternatives;

(iii) the relationship of an existing or proposed diversion to economic development or jobs; and

(iv) the practicality of, and potential for, achieving ecological benefit from restoring stream flow to the specific river or stream system.

(C) To the extent reasonable, all comments received by the commissioner shall be posted on the department's website.

(c) Following the timely submission of public comments pursuant to subdivision (3) of this subsection, the commissioner, in consultation with the Commissioner of Public Health and with technical assistance from the Office of Policy and Management, Department of Economic and Community Development, and the Department of Agriculture as appropriate, shall:

(1) consider such comments and adopt classifications for the river or stream segment thereof as identified in the newspaper notice; and

(2) prepare a document, to be published on the department's website, summarizing the principal reasons in support of the classifications, the principal considerations raised in opposition to the classifications and the reasons for rejecting or modifying a proposed classification. Notice of the adopted classification of any river or stream segment shall be published in the Connecticut Law Journal.

(d) Petition to change classification. After the date of publication of a river or stream segment's classification pursuant to subsection (c) of this section, the commissioner may at any time consider the written petition from any person to change the classification of a river or stream segment.

(1) Demonstration of need for classification change

(A) Any petition to change the classification of a river or stream segment from a more altered to a less altered classification shall include a demonstration that:

(i) one or more of those factors identified in subsection (a) of this section as having relevance with respect to the original classification of that river or stream segment has substantively changed or was substantively mischaracterized at the time of the original classification by the commissioner; or

(ii) the river or stream segment currently exhibits a pattern of flow that is consistent with the narrative stream flow standard for the proposed classification and the release required pursuant to section 26-141b-6 of the Regulations of Connecticut State Agencies under the proposed classification will not cause a community water system to have less than an adequate margin of safety for its average daily demands for the twenty year planning period as specified in the water supply plan in effect at the time the petition is received, or further decrease a margin of safety that is already less than an adequate margin of safety.

(B) Any petition to change the classification of a river or stream segment from a less altered to a more altered classification shall include a demonstration that:

(i) one or more factors identified in subsection (a) of this section as having relevance with respect to the original classification of that river or stream segment has substantively changed or was substantively mischaracterized at the time of the original classification by the commissioner; or

(ii) such change is necessary to accommodate the needs and requirements of public health and safety, flood control, industry, public utilities, water supply, agriculture, or other lawful uses and that those needs and requirements cannot reasonably be satisfied while maintaining consistency with the narrative stream flow standard for the current classification, provided:

(I) alteration of the stream flow pattern has been and will continue to be minimized to the maximum extent practicable through the application of best management practices, including but not limited to, water conservation and a balancing of uses of existing sources of supply;

(II) available sources of water, such as interconnections, have been and will continue to be utilized to the maximum extent practicable; and

(III) new sources of water will be developed and utilized to the maximum extent practicable.

(C) For a river or stream segment for which a change in classification to Class 4 is sought, the petition shall, in addition to those items enumerated in subparagraph (B) of this subdivision, include a demonstration that there is an overriding societal need or economic need that necessitates changing the classification. The petitioner shall demonstrate to the maximum extent practicable that there is no less environmentally damaging alternative.

(2) Commissioner action on petitions; opportunity for public hearing

(A) The commissioner may reject for insufficiency any petition that is not complete or that does not contain information sufficient to make a determination. Such rejection for insufficiency shall state the reasons for such rejection and shall not be subject to public hearing.

(B) The commissioner shall review any petition that is deemed complete except if such petition is submitted less than three years after the initial date of publication in the Connecticut Law Journal of a river or stream segment's classification, the commissioner may reject such petition without prejudice. Such rejection without prejudice shall not be subject to public hearing.

(C) In consultation with the Commissioner of Public Health and with due consideration of the consistency of the petition with the identification of the river or stream segment on the current list prepared by the Commissioner of Public Health pursuant to section 59 of PA 11-242, the commissioner shall determine whether the applicable provisions of subdivision (1) of this subsection are met for the change in classification, request additional information as needed to satisfy such provisions, propose to tentatively grant or deny a petition to change classification, and provide a summary of the reasons for such tentative determination.

(D) The commissioner shall publish notice of such tentative determination in a newspaper with general circulation in the area within which the river or stream segment is located and on the department's website. The commissioner shall also provide notice to the persons listed in section 26-141b-5(b)(2) of the Regulations of Connecticut State Agencies.

(E) The commissioner shall hold a public hearing on such tentative determination, if no later than thirty days after publication of the tentative determination:

(i) the petitioner requesting the change in classification requests such a hearing or

(ii) the commissioner receives a petition, signed by at least twenty-five persons, requesting such a hearing.

(F) Prior to holding a public hearing, the commissioner shall publish notice of such public hearing in a newspaper with general circulation in the area within which the river or stream segment is located and on the department's website. Such notice shall include the date, time and location for such public hearing, provided the hearing date shall be not more than thirty days and not fewer than ten days after the date of such published notice; a description of the location of the river or stream segment at issue; and a summary of the reasons for the tentative determination.

(G) If no public hearing is requested thirty days after publication of the tentative determination, the tentative determination shall be a final decision and such final decision, including any change to an existing classification, shall be published in the Connecticut Law Journal. Any final decision issued after a public hearing shall also be published in the Connecticut Law Journal.

(H) Any public hearing pursuant to this subdivision shall be governed by section 22a-3a-6 of the Regulation of Connecticut State Agencies and the applicable provisions of sections 4-166 to 4-189, inclusive, of the Connecticut General Statutes.

(e) After the date of publication of a river or stream segment's classification pursuant to subsection (c) of this section the commissioner, on his own initiative, may review whether the current classification continues to be appropriate including consultation with the Commissioner of Public Health and, if not, may propose any classification changes as necessary, based upon the factors enumerated in subsections (a)(1) to (18), inclusive, of this section. A commissioner initiated tentative decision to change a classification shall be subject to the notice requirements of subdivision (2)(D) of subsection (d) of this section; the opportunity to request a public hearing by petition contained in subdivision (2)(E) of subsection (d) of this section; and the procedures established in subdivisions (2)(F) to (H), inclusive, of subsection (d) of this section.

Notes

Conn. Agencies Regs. § 26-141b-5

Effective December 12, 2011