...and WetlandsProtection ~nConnecticut

Produced by the Connecticut Departmentof Environmental Protection

Connecticut has a long history of wetland and water-course use relating to agriculture and forestry. Whilethese resources have allowed Connecticut to thrive, theirabuse by land use activities has resulted in increasedseverity of flooding, water pollution, loss of beneficialwildlife and fisheries, and diminished recreational values.Such abuse is evidence of how fragile our wetlands andwatercourses are and how important it is to preserve them.

This pamphlet explains the relationship of agricul-tural and forestry-related pursuits to state and federallaws regulating the use of wetlands and watercourses. InConnecticut, such laws are the Connecticut Inland Wet-lands and Watercourses Act (the Act), the ConnecticutForest Practices Act, Section 404 of the Clean Water Act,and Title XIV, Subchapter B of the Food Securities Act.

In response to public concern that unregulated de-velopment in wetlands and watercourses was adverselyimpacting the environment and ecology of the state, theConnecticut General Assembly passed the Act in 1972.The Act provides for regulation of wetlands and water-courses by each town. Any entity or individual must ob-tain a permit before conducting regulated activities af-fecting wetlands and watercourses. The Act recognizesthe special role that farmers and foresters play as stew-ards of the land. Special provisions were included in theAct exempting many agricultural and forestry activitiesfrom permit requirements.

The Forest Practices Act passed in 1991 regulatesforest activities which may affect wetlands and water-courses. Forest practices such as commercial timber har-vesting for logs or firewood are key examplesof operations which are covered by the law.The legislation is designed to protect andconserve Connecticut’s forest resources byencouraging its wise and careful use.

Section 404 of the Clean Water Act,passed in 1972, set up a program for thefederal government to protect wetlands.Section 404 of the Clean Water Act gavethe authority to the U.S. Army Corps ofEngineers (USACOE) to establish a permitsystem to regulate the dredging and fillingof materials in waters of the United States,including most wetlands.

Title XIV, Subchapter B of the FoodSecurities Act, also referred to as the"Swampbuster" provision, restricts certainU.S. Department of Agriculture (USDA)benefits when draining or conversion of wet-lands occurs.

2

With approp~wetlands can

Why are Wetlands Valu~ble?Wetlands are transitional areas between land and water,encompassing such diverse and complex ecosystems asriparian woodlands, vernal pools, peatlands, floodplains,marshes and swamps. Each individual wetland can pro-vide different functions and possess different values.These benefits can include:

¯ flood control¯ ground water recharge and discharge¯ water quality improvement¯ biological productivity¯ fish and wildlife habitat¯ maintaining biodiversity and open space¯ recreation and aesthetics¯ education and scientific research

How are Connecticut’s Wetlands andWatercourses Defined?The Inland Wetlands and Watercourses Act defines wet-lands and watercourses separately. Wetlands means"land, including submerged land, which consists of anyof the soil types designated as poorly drained, verypoorly drained, alluvial, and floodplain by the NationalCooperative Soils Survey of the Natural Resources Con-servation Service of the United States Department ofAgriculture." Watercourses means "rivers, streams,brooks, waterways, lakes, ponds, marshes, swamps,bogs and all other bodies of water, natural or artificial,

’iate Best Management Practices, agriculture andbe good neighbors.

3

vernal or intermittent, public or private, which are con-tained within, flow through or border upon the state orany portion thereof." Excluded from the definition ofwetlands and watercourses are those areas regulated astidal wetlands. Tidal wetlands are regulated pursuant tosection 22a-28 through 22a-35a of the Connecticut Gen-eral Statutes. Wetlands and watercourses may includeareas which have been subject to prior disturbances suchas grading, draining, and filling.

How is Agriculture in ConnecticutDefined?The terms "agriculture," "farming" and "forestry" arenot defined in the Act. However, section 1-l(q) of theConnecticut General Statutes defines farming and agri-culture to include: "cultivation of the soil, dairying, for-estry, raising or harvesting any agricultural or horticul-tural commodity, including the raising, shearing,feeding, caring for, training and management of live-stock, including horses, bees, poultry, fur-bearing ani-mals and wildlife.. " as well as " ..the operation, man-agement, conservation, improvement or maintenance ofa farm and its buildings..." and " . .construction, opera-tion or maintenance of ditches, canals, reservoirs or wa-terways used exclusively for farming purposes..."

Section 1-1 (q) also defines aquaculture to include:"farming of the waters of the state and tidal wetlandsand the production of protein food, including fish, oys-ters, clams, mussels and other molluscan shellfish, onleased, franchised and public underwater farmlands."The Connecticut Department of Agriculture has exclu-sive authority for granting or denying certain aquacul-ture permits.

How is Forestry in Connecticut Defined?Forestry is the science and practice of producing humanbenefits from the forest while protecting its long-termhealth and productivity. Clean water, wildlife habitat,recreational opportunities, firewood, timber and maplesyrup are but a few examples of the many benefits forestsprovide to people. As noted above, forestry is includedin the definition of farming and agriculture in section1-l(q) of the Connecticut General Statutes. Silvicultureis the art and science of growing and tending forests forthe production of wood and other benefits. Silvicultureencompasses a wide range of practices intended toreproduce forest stands or to increase the growth rate,

vigor and value to trees. Numerous terms associatedwith forestry are defined in section 23-650) of the ForestPractices Act.

The Forest Practices Act requires forest practitionersto be certified by the Connecticut Department of Envi-ronmental Protection (DEP) prior to conducting anycommercial forest practices in Connecticut. The law re-quires that anyone who advertises, solicits, contracts orengages in commercial forest practices within Connecti-cut at any time must have the appropriate certificate is-sued in accordance with the law. A forest practitionercertification is only required for activities which occuron forestland. To qualify as forestland under state regu-lations, the parcel, or portion of a parcel must be at leastone contiguous acre on which there is no structure,maintained landscape area, access way or other im-provements and which is occupied by a minimum num-ber of trees as described in the law. There are three lev-els of certification offered: Forester, Supervising ForestProducts Harvester, and Forest Products Harvester. InConnecticut only a certified Forester is allowed to de-velop a silvicultural plan. Each level has a specific de-scription of what activities they are permitted to do un-der the law. Contact the DEP Forestry Division forfurther details on this program.

How Can I Determine If My PropertyContains Wetlands and Watercourses?Municipal agencies and land owners can utilize the pub-lished soil survey maps and the town’s official wetlandsmap for guidance in determining the general location ofwetlands and watercourses. This is an important firststep before initiating a new activity. Identifying wet-lands and watercourses may be difficult for an untrainedperson. The available maps frequently show only thegeneral location of regulated areas and may not be ad-equate for project planning purposes. A soil scientistmay be required to delineate wetlands and watercourseson a site if the precise location of such area is needed.

Advice regarding the presence of wetlands and wa-tercourses on your land may be obtained by contacting:

¯ your local Inland Wetlands Agency or agent¯ your county soil and water conservation district¯ a soil scientist¯ the USDA Natural Resources Conservation

Service¯ the U.S. Army Corps of Engineers

What is Considered a RegulatedActivity in a Wetland and WatercourseUnder Connecticut Law?Since almost seventeen percent of the state contains wet-lands, it is very likely that the land you farm or use forforestry has a wetland or watercourse on it. A personproposing to conduct a regulated activity in or affectinga wetland or a watercourse must first obtain a permit froman Inland Wetlands Agency. State agencies proposing aregulated activity must obtain a permit from the DEP. Apermit may also be needed from the USACOE. The Actdefines a regulated activity as "any operation within oruse of a wetland or watercourse involving removal ordeposition of material, or any obstruction, construction,alteration or pollution, of such wetlands or watercourses,but shall not include the specified activities in section22a-40 of the Connecticut General Statutes." In addition,Inland Wetlands Agencies can incorporate buffer or up-land review area provisions into the definition of regu-lated activity. Therefore, any clearing, grubbing, filling,grading, paving, excavating, constructing, depositing orremoval of material and discharging of storm water onthe land within a certain distance (specified by the town)measured horizontally from the boundary of any wetlandor watercourse may be a regulated activity. Further, it isimportant to understand that the Inland WetlandsAgency may rule that any other activity located withinsuch upland review area, or in any other non-wetland ornon-watercourse area, is a regulated activity if it is likelyto impact or affect wetlands or watercourses.

What Agricultural and ForestryActivities Require a Permit UnderConnecticut Law?The following activities require a permit under the Act:

¯ roadway construction not directly related to thefarming or forestry operation

"Continual flow" means a flow of water whichpersists for an extended period of time; this flowmay be interrupted during periods of drought orduring the low flow period of the annualhydrological cycle (June through September),but it recurs in prolonged succession.

Inland Wetlands Agency JurisdictionThe |nland INetlands Agency is legally entitled toreview any proposed activity which may affect awetland or watercourse. This includes proposedfarming and forestry activities to determinewhether such activity is regulated or qualifies asan exempt agricultural activity. Inland WetlandsAgencies should not, however, require the reviewof ongoing farming operations such as the rou-tine tilling of soil, and planting or harvesting oncroplands within wetlands or any locally estab-fished buffer zone.

¯ erection of buildings not directly related to thefarming or forestry operation

¯ relocation of watercourses which have continualflow (see the definition of continual flow belowleft; relocation may be associated with channel-ization, culverting, dredging or installation ofdams, dikes or diversion structures)

¯ filling or reclamation of wetlands or watercourseswith continual flow

¯ mining of top soil, peat, sand, gravel, or similarmaterial for purposes of sale

¯ clearcutting of timber not associated with the ex-pansion of cropland

What Agricultural and ForestryActivities are Permitted as of RightUnder Connecticut Law?Many farming and forestry activities in wetlands andwatercourses are permitted "as of right" and thereforeare not regulated activities. The Act exempts the follow-ing activities from permit requirements whether suchactivities apply to existing operations and uses, or tonew operations:

¯ grazing¯ farming (including tbrestry)¯ nurseries¯ gardening¯ harvesting of crops (including silviculture

activities)¯ farm ponds of three acres or less essential to the

farming operation. This means that the pond isnecessary and indispensable to sustain farming

activities. It is important to note while the excava-tion of the pond itself may be exempt, disposal ofthe excavated material into adjacent wetlandsmay require a permit.

¯ clearcutting of trees for the expansion of crop land¯ construction of roads provided they are directly

related to the farming or forestry operation¯ erection of buildings provided they are directly

related to the farming or forestry operation¯ activities conducted by, or under the authority of,

the DEP for the purposes of wetland or watercourserestoration or enhancement or mosquito control

Some of these activities may be regulated under theFederal Clean Water Act.

How Can I Determine If My Agricul-tural and Forestry Activity is ExemptUnder Connecticut Law?Your first step should be to contact the local Inland Wet-lands Agency for a jurisdictional ruling. Inland WetlandsAgencies are entitled to review any non-state agencyproposed activity which may impact a wetland or water-course, and to request sufficient information about thatactivity to determine whether it is exempt. "Sufficientinformation" generally does not include everything thatis normally required in a permit application for a regu-lated activity. A brief letter with backup documentation

Forest SilviculturalPlan Map

Proposed TemporaryBridge

ProposedMain Skid Trail

Proposed Log Landing

LEGEND

- - - _- _- Existing Woods Road

~ Stone Wall

Cover Type I~oundary

Intermittent Stream

Proposed IntermediateHarvest Area

//

OAK/HICKORY/II i/II

..I

OAK/HICKORY

OAKIHICKORYkk .......

~ OPEN

WHITEPINE

Route 100 [ 600

A plan typically shows the location of wetlands and watercourses, buildingsand roads, areas currently in farming operation, use of best managementpractices, and any work that is proposed. This simple plan can be avaluable tool in protecting wetland and water resources.

will often suffice. Detailed engi-neering plans, including soil sci-entist reports, are not usually re-quired. However, you shouldconsult the municipal regulationsfor specific requirements. Docu-mentation may include the fol-lowing:

¯ a location map of yourproperty (a photocopy ofthe U.S. Geological surveytopographic map or townwetland map is ideal, but atown road map or sketchmay suffice)

¯ a plan or drawing showingthe location of wetlands,watercourses, areas cur-rently farmed, building androad locations, and a sketchof what work you propose

¯ documentation that the useof the property is for agri-cultural purposes and thatthe work you propose isrelated to, or essential to, thatactivity

For forestry proposals, documen-tation might include the following:

¯ evidence that a certifiedprofessional forester is in-volved in planning andimplementing the operation.Professional foresters must

be certified by the Connecticut DEP and providecopies of their certificate upon request.

¯ a silvicultural plan prepared by a certified profes-sional forester. These plans are derived fromcareful analysis of the forest sites where the pro-posed activity will be conducted. They clearlystate the goals of the proposed activity and detailson its implementation, including best manage-ment practices that will be utilized to minimizeimpacts on wetlands and watercourses.

¯ a forest stewardship plan. These plans can pro-vide strong evidence that the proposed operationis part of an overall plan to enhance forest healthand productivity. Plans written by a professionalforester show landowners how to gain such ben-efits from their forest.

¯ a sketch map or drawing showing the general lo-cation of wetlands and watercourses and thepractice(s) to be performed. If a silvicultural planhas been prepared it will typically include such amap.

The DEP encourages Inland Wetlands Agencies toprovide expedited review procedures for "permitted asof fight" agricultural or forestry activities. Providinggood documentation will protect your fights under thelaw and will make it easier for the Inland WetlandsAgency to understand your proposal.

If a determination is made that the project or a por-tion of it is not exempt, an application must be filed for awetland permit with the appropriate plans and support-ing documentation so the Inland Wetlands Agency canmake an informed decision. Inland wetlands regulationsspecific to each town will identify what information isneeded for a complete permit application. No new activ-ity should proceed that may affect wetlands or water-courses until a permit has been issued, or until theagency has determined that the project is exempt. Agri-culture and forestry actions can be subject to the en-forcement authority of the Inland Wetlands Agency ifsubsequent actions deviate from that which was autho-rized.

How Can I Limit the Impact of MyActivities on Water Resources?Whether a permit is obtained or an exemption is granted,all work should be carried out in an environmentallysensitive manner. All forestry activities should be con-ducted in adherence to professionally recognized prin-

10

ciples of forest management. Attention to seasonal con-siderations, erosion control, seeding and stabilizationwill help make your project successful.

Agricultural pollutant sources are nutrients (particu-larly nitrogen and phosphorus), sediment, animal wastes,pesticides and salts. These pollutants can enter surfacewater through direct runoff or through seepage intogroundwater that discharges to a surface water outlet.Provided they are maintained in a natural and undis-turbed condition, wetlands can help improve water qual-ity, store floodwater, reduce erosion and rechargegroundwater. The state’s policy is to encourage agricul-tural and forestry practices consistent with Best Manage-ment Practices (BMPs) to protect our fragile water re-sources. BMPs are procedures or methods of reducing oreliminating the generation of wastes and wastewaters,spills and leaks, or other releases into the environment.For more information on BMPs and technical assistanceon applying them, contact the agencies listed on the backof this pamphlet.

How are Wetlands Regulated by theFederal Government?Two federal Acts, Section 404 of the Clean Water Actand Title XIV, Subchapter B ("Swampbuster") of theFood Security Act of 1985, as amended in 1990 and1996, contain wetland conservation provisions, whichgovern the conversion of wetlands for the purpose ofcommodity crop and silvicultural production.

What is Section 404 of the CleanWater Act?Section 404 of the Clean Water Act defines wetlands as"...those areas that are inundated or saturated by surfacewater or groundwater at a frequency and duration suffi-cient to support, and under normal circumstances dosupport, a prevalence of vegetation typically adapted forlife in saturated soil conditions." It is important to notethat the federal definition of wetlands is different fromthe definition of wetlands under Connecticut’ s Act.

Section 404 of the Clean Water Act lists specificagricultural and silvicultural activities which are exemptfrom regulation, even though these activities occur on"jurisdictional wetlands." The regulatory agency whichadministers Section 404 of the Clean Water Act is theUSACOE in consultation with the U.S. EnvironmentalProtection Agency, the U.S. Department of Interior Fish

and Wildlife Service, the National Marine Fishery Ser-vice and the U.S.D.A. Natural Resources ConservationService (NRCS). The NRCS can provide information onfederal wetlands criteria, wetland determinations on ag-ricultural lands, information on wetland soil characteris-tics, and interpretations and information on federal rulesand regulations concerning administration of its programs.

What Farming and Forestry Activitiesare Exempt from Section 404 of theClean Water Act?There are basically two main provisions under Section404 that must be satisfied for a farming activity to beexempt. Under Section 404(f)(1), a discharge is exemptonly if it is associated with certain ongoing farming,silviculture, and ranching activities. Under Section404(f)(2), known as the "recapture provision," the dis-charge continues to be exempt only if the activity doesnot bring an area of waters into a new use and impair theflow and circulation of the waters or reduce their reach.Exempt activities are:

¯ established (i.e., ongoing), normal farming activi-ties such as: plowing, seeding, cultivating, har-vesting and minor drainage for the production offood or fiber

¯ maintenance (but NOT construction) of drainageditches (the term "maintenance" includes removalof accumulated silt and debris, but does not in-

clude widening, deepening, realigning or extend-ing the length of existing drainage ditches)

¯ construction and maintenance of irrigationditches

¯ construction and maintenance of farm or stockponds (to provide water for livestock or irrigationas long as the size and location of the pond areproportionate to the quantity of water needed tosupport the principal farming operation)

¯ construction and maintenance of farm and forestroads, in accordance with BMPs

The list above is a summary. The full text of thefederal law can be found in Section 404(0 of the CleanWater Act. Many clarifications and examples are foundin the USACOE implementing regulations and inter-agency memoranda. (For further details the followingInternet address can be accessed: http://www.usace.army.mil/net/functions/cw/cecwo/reg with 404f.htm,sec404.htm, 33cfr323.htm#323.4, and cwaag.htm).

To be exempt under Section 404 of the Clean WaterAct, the farming or silvicultural activity must be part ofan ongoing farming or silvicultural operation and cannotbe associated with converting a wetland to agriculturalor silvicultural production, or converting an existing ag-ricultural or silvicultural wetland into non-wetLand area.

Wetlands which were hydrologically altered andconverted to produce an agricultural commodity (mean-ing an annually tilled crop) prior to December 23, 1985,and which were or are used for commodity crop produc-

tion and remain in agriculturaluse, are identified as "prior con-verted croplands" when desig-nated by NRCS. Such wetlandsare not under the jurisdiction ofSection 404 unless the activitieswhich resulted in the conversioninvolved the unauthorized dis-charge of dredged or fill materialinto wetlands or other waters.Agricultural wetlands whichhave not been used, managed ormaintained for cropping purposes

12

Farm ponds of three acres or lessare permitted as of right, butonly if necessary and indispens-able to sustain farming activities.

13

in the last five years are consideredabandoned and generally are subject toregulation under Section 404. Areas thatare inundated for longer than 14 daysduring the growing season are not priorconverted but "farmed wetlands" andremain under Section 404 jurisdiction.

What Farming Activitiesare Regulated Under theWetland ConservationProvisions (Swampbuster)of the Food Security Act asAmended?The "Swampbuster" provision of theFood Security Act, as amended, restrictsthe USDA program benefits whenpersons:

¯ drain or convert wetlands including the removalof woody vegetation for the purpose of agricul-tural production after November 28, 1990; or

¯ plant agricultural commodity crops on convertedwetlands which were converted by drainage,dredging, filling, leveling removing woody veg-etation, or otherwise manipulated alter December23, 1985.

Conversion of wetlands for use in production of acommodity crop may result in the loss of all USDA pro-gram benefits including farm loans.

A skidder drops a load qf!logs in a landing area.[br trucking.

When Do Federal "Swampbuster"Provisions Apply?The NRCS will, upon request, make a certified wetlanddetermination on agricultural lands. This is the best wayto determine if wetlands are present on your lands in-cluding the lands you rent, and what restrictions and ex-emptions apply to their use. The wetland determinationcan be done for either the owner or the producer. To re-quest a certified determination, contact your localUSDA NRCS office.

It is much easier to ask the question, "Do I havewetlands in my fields?" before they are altered, than af-ter, when USDA benefits may be jeopardized, and wet-land restoration required.

What Other Permits Might I Need?The Connecticut DEP has a number of regulatory pro-grams which may affect your farming or forestry opera-tion. The following is a listing of the most common per-mits and the DEP unit which you may contact ifquestions arise:

¯ Dam construction or impoundmentsDEP Dam Safety ProgramPhone: (860) 424-3706

¯ Diversions of water for irrigation, dam construction,stream channelization or relocationDEP Water Diversion ProgramPhone: (860) 424-3019

¯ Pesticide application, algae controlDEP Pesticide ProgramPhone: (860) 424-3369

¯ Agricultural waste managementDEP Water Bureau - Permitting, Enforcementand Remediation DivisionPhone: (860) 424-3018

¯ Licensing of forest practitionersDEP Forestry DivisionPhone: (860) 424-3630

14 15

Where Can I Go for Assistance?The following agencies and organizations provide guid-ance on a wide range of topics dealing with the propermanagement of water resources. Publications are oftenavailable upon request.

Municipal Inland Wetland AgencyTown Hall

CT DEP Wetland Management Program(860) 424-3019

CT DEP Forestry Division(860) 424-3630

CT DEP Wildlife Division(860) 424-3011

CT Department of Agriculture(860) 566-4845

CT Farm Bureau Association, Inc.(860) 683-1922

CT Council on Soil & Water Conservation(860) 424-3905

CT Cooperative Extension SystemCollege of Agriculture and Natural ResourcesUniversity of Connecticut(860) 486-6271

U.S. Army Corps of Engineers(800) 343-4789

U.S. Environmental Protection Agency(617) 565-3420

USDA Natural Resources Conservation Service(860) 487-4011

USDA Consolidated Farm Services Agency(860) 285-8483

STATE OF CONNECTICUTDEPARTMENT OFENVIRONMENTAL PROTECTION79 Elm StreetHartford, CT 06106-5127

Arthur J. Rocque, Jr., Commissioner

The Connecticut Department of Environmental Protection is anaffirmative action/equal opportunity employer, providing programs andservices in a fair and impartial manner. In conformance with theAmericans With Disabilities Act, the CT DEP makes every effort toprovide equally effective services for persons with disabilities.Individuals with disabilities needing auxiliary aids or services, or formore information by voice or TTY/1-DD, call (860) 424-3000.

Funding for this brochure was provided in part by a grant from theUnited States Environmental Protection Agency under Section104(b)(3) of the Clean Water Act.

Assistance in developing this brochure was provided by the Universityof Connecticut Cooperative Extension System and the USDA NaturalResources Conservation Service.

I~1 Printed on recycled paper.