Inland Wetlands, A Significant Area of Concern

Did you know that inland wetlands (as distinguished from tidal wetlands) are a significant area of concern for most land use projects in Connecticut?  Inland wetlands perform a variety of beneficial ecological functions from flood control and water quality to animal habitat, yet the state and federal governments define wetlands differently.  For example, an area may be a wetland for state regulatory purposes, but not for federal.  Inland wetlands are not always easily recognized; an area may be a wetland even though it is typically not wet and is unconnected to a body of water. 

Activities which impact inland wetlands and watercourses are regulated in Connecticut at the municipal level through a delegation of authority from the Department of Environmental Protection.  Inland wetlands are also regulated by the United States under the Clean Water Act and the Rivers and Harbors Act.  The United States Army Corps of Engineers (“USACOE”), which has primary federal oversight, has recently enacted a new Programmatic General Permit (“PGP”) for the State of Connecticut to expedite review of certain minor land uses with minimal impact on federally regulated inland wetlands.  If a landowner’s activities fall within the criteria of the PGP an individual permit will typically not be required.  Certain enumerated activities with less than 5,000 square feet of wetlands impacts are classified as Category 1.  Category 1 activities do not require notification to, or review by, the USACOE.  Certain enumerated activities with wetlands impacts from 5,000 square feet to 1 acre are classified as Category 2.  Category 2 activities require submission of an application to the USACOE and review by various state and federal agencies.  Category 2 activities may not proceed without written authorization from the USACOE.   Unless otherwise exempt, any activity not within Category 1 or 2 requires an individual, project-specific permit from the USACOE; a potentially costly and lengthy process involving a number of federal and state agency reviews.  There is no corresponding PGP under Connecticut state law.  Accordingly, even if an activity meets the criteria under the federal PGP, an individual municipal wetlands approval is usually still required.  The Firm provides a full range of legal services to landowners and   prospective purchasers, large and small, including applications to the local, state and federal agencies which regulate land use impacts to inland wetlands and watercourses. 

The Firm’s business services group recently concluded an almost two year assignment for the University of Bridgeport.  The University is converting and enlarging two surplus buildings into an elementary school which will be sold on a turnkey basis to the City of Bridgeport.  The Firm’s attorneys (i) negotiated a $32.4 Million guaranteed maximum price Development Agreement and Purchase and Sale Agreement between the University and the City as well as a design-build guaranteed maximum price construction contract, and (ii) arranged for, and closed, a $28 Million construction mortgage for the project, and worked closely with the Bureau of School Facilities of the Connecticut Department of Education to protect the $35.5 Million state grant to the City which will enable the City to both purchase the finished school from the University in early 2009 and furnish it.  This in-fill development provides significant benefits to both the University and the City.