Conn. Agencies Regs. § 26-141b-6 - Release requirements

(a) Not later than ten years after the initial date of publication in the Connecticut Law Journal of a river or stream segment's classification, a dam owner or operator shall comply with the following:

(1) Operate all dams such that, unless the Commissioner of Public Health determines that a water supply emergency exists, no active manipulation of the storage of water occurs behind the dam and no withdrawal of water occurs from within the impoundment, if the release is into a river or stream segment designated as Class 1.

(2) Release a continuous seventy-five percent of the river or stream system's natural inflow if the release is into a river or stream segment designated as Class 2. Such release shall be calculated and the release rate adjusted, if necessary, on the first day and the fifteenth day of every month unless such day falls on a weekend or holiday in which case the required release shall be calculated and the release rate adjusted on the next business day.

(3) Release the following minimum continuous flow if the release is into a river or stream segment designated as Class 3:

Bioperiod	Effective Dates	Minimum Required Release
		Antecedent Period Dry	Antecedent Period Wet
Overwinter	Dec 1 - Feb 28/29	Bioperiod Q99
Habitat Forming	Mar 1 - Apr 30	Bioperiod Q99
Clupeid Spawning	May 1 - May 31	Bioperiod Q95
Resident Spawning	June 1 - June 30	Bioperiod Q90
Rearing and Growth	July 1 - Oct 31	Bioperiod Q80	Bioperiod Q50
Salmonid Spawning	Nov 1 - Nov 30	Bioperiod Q90

(A) The required release shall be calculated and the release rate adjusted, if necessary, on the first day and the fifteenth day of every month unless such day falls on a weekend or holiday in which case the required release shall be calculated and the release rate adjusted on the next business day.

(B) The wet period release shall be required when the median natural flow during the antecedent period equals or exceeds the bioperiod Q25.

(C) The dry period release shall be required when the median natural flow during the antecedent period is less than the bioperiod Q25.

(4) Release flow that is consistent with the narrative standards for a Class 4 river or stream segment and that is approved as a site specific release by the Commissioner pursuant to subdivision (2) of subsection (f) of this section, if the release is into a river or stream segment designated as Class 4. Such site specific release may include provisions similar to those specified in subsection (b) of this section.

(5) Notwithstanding subdivisions (2) and (3) of this subsection:

(A) Release a minimum of the rearing and growth bioperiod Q80 or the natural inflow of water, whichever is less, for a dam that impounds a river or stream system with an upstream, natural drainage area of three square miles or less;

(B) Release a minimum of the rearing and growth bioperiod Q80 or the natural inflow of water, whichever is less, for a dam that releases to a river or stream system that flows for a distance of one and one-half miles or less before discharging into an impoundment, and provided releases from the downstream dam, or the most downstream dam if in a series, comply with subdivision (3) of subsection (a) of this section; or

(C) Release a minimum of the rearing and growth bioperiod Q80 or the natural inflow of water, whichever is less, for a dam that impounds a reservoir with usable storage of 100 million gallons or less.

(D) The required release pursuant to this subdivision shall be calculated and the release rate adjusted, if necessary, not less frequently than the first day and the fifteenth day of every month unless such day falls on a weekend or holiday in which case the required release shall be calculated and the release rate adjusted on the next business day.

(b) A dam owner or operator may alter the minimum release required in subsection (a) of this section in accordance with the following:

(1) Reduce the minimum release to 85% of that required pursuant to subdivision (2) or (3) of subsection (a) of this section or subsection (c) of this section, as applicable, during the habitat forming and clupeid spawning bioperiods when water system storage is less than 50 percent of the difference between normal water system storage and the system's drought advisory trigger level, as specified in the water supply plan in effect at that time, for fourteen consecutive days, if such dam owner or operator is subject to section 25-32d of the Connecticut General Statutes and regulations adopted pursuant to said section, provided at no time shall the required release be less than the rearing and growth bioperiod Q80 and:

(A) The normal water system storage is a twenty year average as specified in the water supply plan in effect at that time;

(B) The dam owner or operator issues a general public announcement of intent to reduce releases as allowed in this subdivision for the purposes of summer stream flow preservation and provides notification to the commissioner and the Commissioner of Public Health, not later than seven days after reducing the release; and

(C) The minimum release required pursuant to subdivision (2) or (3) of subsection (a) of this section or subsection (c) of this section, as applicable, is restored when water system storage equals or exceeds 50 percent of the difference between normal water supply system storage and the system's drought advisory trigger level for fourteen consecutive days.

(2) Reduce the minimum release required pursuant to subdivision (3) or (5) of subsection (a) of this section or subsection (c) of this section, as applicable, during certain drought phases, if such dam owner or operator is subject to section 25-32d of the Connecticut General Statutes and regulations adopted pursuant to said section. These drought phases, as defined in the dam owner or operator's water supply plan in effect at that time, shall trigger the following reduced releases:

Water Supply Plan Trigger	Percentage of Required Dry Release
	Rearing & Growth Bioperiod	All Other Bioperiods
Drought Advisory	100%	75%
Drought Watch	50%	50%
Drought Warning	25%	25%
Drought Emergency	No Release Required	No Release Required

(c) A dam owner or operator may alter the minimum release required pursuant to subdivisions (3) or (5) of subsection (a), for a period of ten years, if such dam owner or operator is subject to section 25-32d of the Connecticut General Statutes and regulations adopted pursuant to said section, and the release required pursuant to subdivision (3) or (5) of subsection (a) of this section will cause a community water system's margin of safety to be less than an adequate margin of safety or further decrease a margin of safety that is already less than an adequate margin of safety, provided that the margin of safety is based on an annual average of daily demands for the preceding five calendar years and the release is made in accordance with one of the following requirements:

(1) Release the maximum amount of water that will allow an adequate margin of safety to be maintained, provided the release is at least 50% of the release required pursuant to subdivision (3) of subsection (a) of this section, the release is at no time less than the rearing and growth bioperiod Q80, and the dam owner or operators complies with a work plan that is submitted to the commissioner that includes the following:

(A) a quantitative description of releases to be provided during each bioperiod and the impact on margin of safety;

(B) water conservation actions to be taken pursuant to long- term conservation as specified in the water supply plan in effect at that time;

(C) a balancing of uses of existing sources of supply, such as interconnections, to the maximum extent practicable, to minimize impact on the river or stream segment;

(D) a triennial water audit of the water distribution system which follows the standards and criteria contained within the American Water Works Association Manual M36, as may be amended or revised from time to time;

(E) a quinquennial system-wide, comprehensive leak detection survey of the water distribution systems and subsequent repair of any leaks found; and

(F) an annual written report to the commissioner documenting steps taken and the result of the work plan implementation on making the release required pursuant to subdivision (3) of subsection (a) of this section and achieving an adequate margin of safety.

(2) If the owner or operator cannot maintain an adequate margin of safety as a result of meeting the release required pursuant to subdivision (3) of subsection (a) of this section as may be modified by subdivision (1) of this subsection or pursuant to subdivision (5) of subsection(a) of this section, release the maximum amount of water that will allow an adequate margin of safety to be maintained provided that the dam owner or operator complies with a work plan submitted to the commissioner for review that includes:

(A) the items specified in subparagraphs (A) to (F), inclusive of subdivision (1) of this subsection;

(B) infrastructure improvements and any new source of water supply planned to achieve an adequate margin of safety, as may be specified in the water supply plan in effect at that time;

(C) any other actions the community water system has taken or will take, as necessary, to make the release required pursuant to subdivision (3) or (5) of subsection (a) of this section and to achieve an adequate margin of safety; and

(D) resubmittal of the work plan to include any additional steps necessary to address deficiencies in the work plan identified in writing by the commissioner.

(3) A dam owner or operator may reduce releases under this subsection in accordance with subdivision (1) or (2) of subsection (b) of this section, as applicable.

(d) A dam owner or operator may request from the commissioner a written extension of time to:

(1) Comply with the provisions of subsection (a) of this section or subdivision (2) of subsection (f) of this section at any time after the initial date of publication of a river or stream segment's classification or reclassification, if such extension of time is necessary to achieve compliance. Any such request for a time extension shall be submitted in writing to the commissioner and shall include reasons for such request, including but not limited to, engineering, financial, permitting, or public health considerations.

(2) Make reduced releases in accordance with subsection (c) of this section if after a period of ten years of compliance with a work plan in accordance to subdivision (1) or (2) of subsection (c) of this section, the dam owner or operator cannot maintain an adequate margin of safety while meeting the release required pursuant to subdivision (3) or (5) of subsection (a) of this section. The commissioner shall consult with the Commissioner of Public Health, and obtain technical assistance from the Office of Policy and Management, and the Department of Economic and Community Development, as appropriate, before granting or denying such request. The commissioner may request additional information before acting on such request. The owner or operator may include the following information for the commissioner's consideration in such request:

(A) the actions taken to achieve an adequate margin of safety, including the technical and economic practicability of any supply alternative or other potential actions identified in the work plan, but not fully implemented;

(B) an updated work plan submitted for the commissioner's approval;

(C) the provisions of the community water system's legislative charter or other legal authority;

(D) the financial viability of the community water system;

(E) the existing approved rate schedule of the community water system and the potential impact on rates and the system's long-range capital plan;

(F) any other factors that have the potential to jeopardize the safety, dependability, or financial viability of the community water system; and

(G) any other actions the community water system has taken or will take, as necessary, to make the release required pursuant to subdivision (3) or (5) of subsection (a) of this section and to achieve an adequate margin of safety.

(e) A dam owner or operator may apply for an exemption from the requirements of subdivision (3) or (5) of subsection (a) of this section, if such dam owner or operator is subject to section 25-32d of the Connecticut General Statutes and regulations adopted pursuant to said section, for a dam immediately upstream of a river or stream segment having a rearing and growth bioperiod Q80 between 0.1 and 0.2 cubic feet per second or a dam having outlet works that release into an impoundment. Any request for an exemption shall be submitted in writing and include a demonstration that a release from such dam in accordance with the provisions of subdivision (3) or (5) of subsection (a) of this section will provide de minimis environmental benefit due to downstream conditions or other factors. The commissioner may require additional information prior to acting on such a request.

(f) Alternative release requirements

(1) Variance

(A) The commissioner, after consultation with the Commissioner of Public Health, may approve a variance that modifies the minimum release required pursuant to this section if requested by:

(i) The Governor;

(ii) The Commissioner of Public Health, Agriculture or, Economic and Community Development, or the Secretary of the Office of Policy and Management; or

(iii) The owner or operator of a dam.

(B) A request for a variance under this subdivision shall contain information sufficient to allow the commissioner to give adequate consideration to the effect of the operation of the dam under such variance on the river or stream system in question. The commissioner may require additional information prior to acting on such a request.

(C) The commissioner may issue a variance for a period up to 180 days, followed by a renewal for 180 days.

(D) The commissioner may issue a variance having a duration longer than 360 days provided the person requesting such variance:

(i) Publishes notice of such request and opportunity to submit comments to the commissioner in a newspaper of general circulation in the area within which the river or stream system that will be affected by the variance is located and sends the commissioner a certified copy of such notice as it appeared in the newspaper. Such notice shall include:

(I) the name and mailing address of the requester;

(II) the location of the river or stream system that will be impacted by the variance;

(III) a description of the variance including any natural resources that would be impacted by such variance; and

(ii) Provides notice to the persons listed in section 26-141b-5(b)(2) of the Regulations of Connecticut State Agencies.

(E) In determining whether to grant a variance under this subdivision, the commissioner shall evaluate consistency of the variance with the applicable narrative standard for the river or stream segment in accordance with section 26-141b-4 of the Regulations of Connecticut State Agencies and shall consider the needs and requirements of public health and safety, flood control, industry, public utilities, water supply, agriculture and other lawful uses. The commissioner may also consider the following factors:

(i) Recent runoff or rainfall statistics as compared with average runoff or rainfall over preceding years;

(ii) Recent impoundment levels or volume of diversion as compared with levels or volumes during the same bioperiod in previous years;

(iii) Peculiar or unusual demand situations or requirements to protect water quality;

(iv) Peculiar or unusual water capture problems;

(v) Unusual health, safety, power, infrastructure or other circumstances affecting the dam owner or operator's ability to comply with the minimum release required in this section; and

(vi) Any comments received in response to the notice published in accordance with subparagraph (D) of this subsection.

(F) The commissioner may grant the requested variance in whole or in part, and may make any individual, basin-wide or state-wide adjustments to release requirements. The commissioner may include any condition that the commissioner deems necessary in granting any such variance.

(2) Site Specific Release

(A) The owner or operator of a dam, may at any time after the initial date of a river or stream segment's classification submit for the commissioner's written approval a request for a site specific release, provided any owner or operator of a dam located on a Class 4 river or stream segment shall submit such a request for a site specific release. Such site specific release may include provisions similar to those specified in subsections (b) and (c) of this section.

(B) A request for a site specific release under this subsection shall be on a form prescribed by the commissioner and shall contain information sufficient to:

(i) allow the commissioner to give adequate consideration to the effect of the operation of the dam under such an alternative release on the river or stream system in question;

(ii) demonstrate that the river or stream segment impacted by the site specific release will continuously meet the applicable narrative standard when fully implemented;

(iii) specify monitoring and reporting requirements consistent with the requirements of section 26-141b-7 of the Regulations of Connecticut State Agencies.

(C) The commissioner shall not grant a request for a site specific release unless the commissioner determines that the proposed release is consistent with the narrative standard for the river or stream segment in accordance with section 26-141b-4 of the Regulations of Connecticut State Agencies. In evaluating whether to grant the requested site specific release under this subdivision, the commissioner shall also consider the needs and requirements of the public health and safety, flood control, industry, public utilities, water supply, agriculture and other lawful uses. Specific factors for consideration may include:

(i) the impact of the site specific release on a community water system's margin of safety;

(ii) the ecological benefit of implementing the site specific release;

(iii) the potential of a site specific release to lessen capital and operating costs to implement a release; and

(iv) an implementation schedule.

(D) The commissioner may reject for insufficiency any request 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.

(E) The commissioner shall review any request that is deemed complete.

(F) The commissioner shall make a tentative determination to grant or deny the site specific release and provide a summary of the reasons for such tentative determination.

(G) The commissioner shall publish notice of such tentative determination in a newspaper with general circulation in the area within which the river or stream system 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.

(H) 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 site specific release requests such a hearing or

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

(I) 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 system 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.

(J) If no public hearing is requested thirty days after publication of the tentative determination, the tentative determination shall be a final decision.

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

(g) Notwithstanding the provisions of subsection (a) of this section, any change in release requirements that is a result of a re-classification of a river or stream segment, pursuant to subsection (d) of section 26-141b-5 of the Regulations of Connecticut State Agencies, shall be effective (1) immediately upon publication in the Connecticut Law Journal if such publication occurs ten years or more after the publication of the first classification of such system or segment in the Connecticut Law Journal, and the re-classification is from a less altered to a more altered classification, (2) three years after publication in the Connecticut Law Journal if such publication occurs ten years or more after the publication of the first classification of such system or segment in the Connecticut Law Journal and the re-classification is from a more altered to less altered classification, unless another date is approved by the commissioner pursuant to subsection (d) of this section or (3) ten years after the date of publication of the first classification of such system or segment in the Connecticut Law Journal if publication of the change in classification occurs within the ten years after the publication of the first classification unless a written extension of time is approved by the commissioner pursuant to subsection (d) of this section.

Notes

Conn. Agencies Regs. § 26-141b-6

Effective December 12, 2011