260 Conn. 506 | Conn. | 2002
Opinion
The named plaintiff, the city of Waterbury (Waterbury), appeals
This case concerns the use of the Shepaug River
The trial court found the following facts, which are not in dispute. “Waterbury first developed in the low-lying portions of its present location and expanded up the sides of the surrounding hills. The growth of [Waterbury] in the last part of the nineteenth century and the first decades of the twentieth was related to the development of mills and manufacturing. In 1893, the General Assembly authorized Waterbury to increase its water supply by taking water from ‘any and all brooks, rivers, ponds, lakes, and reservoirs within the limits of the county of New Haven or the county of Litchfield such supply of water as the necessities or convenience of the inhabitants of said city may require.’ [11 Spec. Acts 322, No. 252, § 1 (1893)]. Later enactments excepted Bantam Lake and certain waters of the Naugatuck River. [15 Spec. Acts 912, No. 344 (1909) and 17 Spec. Acts 84, No. 101 (1919)].
“Rapid growth in population and some dry years in the first decade of the twentieth century strained [Waterbury’s] public water supply. The supply was insufficient at times to maintain pressure to the homes and buildings on the higher elevations, served by the
“The higher in elevation of these two reservoirs is the Morris Reservoir. When the Morris Reservoir is full, at an elevation of 515 feet, the water from that reservoir spills out and flows down to the Wigwam Reservoir, which reaches its overflow point at 424.8 feet of elevation. When the Wigwam Reservoir is full, it spills into the Branch Brook, which eventually empties into the Naugatuck River.
“In 1917, [Waterbury’s] engineers reported the need for additional water. [Waterbury] obtained land in the valley of the Shepaug River and built a seven and one-half mile long tunnel to deliver water diverted from that river to its water system in the Wigwam basin.
“[Washington] was wary of [Waterbury’s] acquisition of water from the Shepaug River and introduced legislation in the General Assembly to repeal the 1893 [Special] Act. It withdrew the bill upon executing a contract with [Waterbury] on May 3, 1921.
“The Shepaug Reservoir, located behind the Shepaug Dam that was under construction from 1929 to 1933, is located about eight miles west of the reservoirs in the Wigwam basin. The watershed basin for the Shepaug Reservoir is about twenty-eight square miles in size. In 1943, [Waterbury] completed the Pitch Reservoir, into which the flow from the Shepaug tunnel was directed. The Morris Reservoir is immediately downstream from the Pitch, which, in addition to water received from the Shepaug basin through the tunnel, stores runoff from part of the Wigwam basin.
“There are, at present, three routes by which water leaves the Shepaug Reservoir: by diversion through the aqueduct tunnel to the Pitch Reservoir, by spillage down the spillway to the Shepaug River when the reservoir is full, and by release from a pipe in a chamber in the dam to the Shepaug River. That pipe, which the witnesses referred to as ‘the eight inch pipe,’ if left full open releases a maximum flow of approximately 4.9 [mgd] down the Shepaug River. The flow may be considerably lower depending on the head of pressure. . . .
“There is a pool at the foot of the Shepaug Dam. For a substantial distance south of the dam, the land on both sides of the river is owned by Waterbury. Peter’s Weir (a small dam) is located a short distance downstream from the dam, and a stream flow gauge has existed in the past at this weir. About three miles below the weir the west branch of the Shepaug River reaches a confluence with the Bantam River, which is located to the east. From the confluence onward, about 50 percent of the summer flow of the Shepaug River is contributed by the Bantam River as measured by Dr. Kenneth Wagner at stream gauges installed in the summer of 1999. The Steep Rock Association, Inc., operates a land trust of about 220 acres located on the Shepaug River both north and south of the confluence with the Bantam River and also in an area on the river north of Washington Depot.
“The town center of Washington Depot is south of the confluence. The river flows south from the Depot
“The method of operating [Waterbury’s] water system which gave rise to dissatisfaction, and then to the claims of Washington, Roxbury, and their cocounterclaimants in this suit, began soon after Waterbury built a water treatment plant in 1988 to achieve compliance with water quality standards imposed by the federal government. [Waterbury] located the treatment plant close to the Morris Reservoir, so that water from the Morris and the Pitch could flow to the plant by gravity, without the need for pumping. Water from the Wigwam would have to be pumped uphill to the treatment plant, incurring energy costs. [Waterbury] therefore drew its water almost exclusively from the Pitch and the Morris, with the result that the Wigwam Reservoir filled and either spilled over or was lowered by the release of water from a pipe into the Branch Brook, from which water flowed to the Naugatuck River.
“Another feature of operation from at least 1988 onward was the use of turbines to pump water to the high service areas of the water supply system. The turbines were powered by the flow from the Pitch Reservoir. A high flow or ‘head’ is required to operate these turbines, and water was diverted from the Shepaug Reservoir through the tunnel in large part to keep the Pitch Reservoir high enough to have the requisite head to power the turbines. If the flow from the Pitch was insufficient, [Waterbury] would have to incur the costs of electrical power to pump to the high service area.
“Official records establish that [Waterbury] operates its water supply system in a manner that results in a
“Another record of use, exhibit 516, shows that in August, 1996, [Waterbuiy] used no water from the Wigwam Reservoir, an average of 15.1 mgd from the Pitch and an average of only 3.4 mgd from the Morris Reservoir, while exhibit 514 shows an average daily diversion of 14.4 mgd from the Shepaug River to the Pitch Reservoir. . . .
“[Waterbuiy’s] records indicate that before 1997, [Waterbury] limited the release of water to the Shepaug River between May 1 and November 1 to 1.5 [mgd].”
“For several years residents of the towns along the river and members of the Steep Rock Association, Inc., the Roxbury Land Trust, Inc., and the Shepaug River Association, Inc., have suspected that the diversion of water by [Waterbury] was causing the river to have extremely low flows in summer months, diminishing its natural beauty, reducing it as a habitat for fish and river organisms, and limiting its value for fishing and other recreation. They brought their concerns to the attention of the Connecticut department of environmental protection, which regulates various aspects of natural resources, and to the department of public health, which has jurisdiction over many issues concerning
Both cases were transferred to the complex litigation docket, and eventually merged into a single case, in which Waterbury’s request to be designated the plaintiff was granted. Waterbury sought a declar atory judgment that its operation of the Shepaug dam did not: (1) constitute a breach of its 1921 contract with Washington; (2) violate CEPA by impairing the public trust; (3) create a public or private nuisance; and (4) violate any riparian rights of the defendants.
The defendants’ five count counterclaim alleged that Waterbury’s excessive diversions of water from the Shepaug River: (1) violated CEPA by unreasonably polluting, impairing, or destroying the public trust in the water; (2) constituted a public nuisance; (3) constituted a private nuisance; (4) interfered with the riparian rights of the defendants; and (5) constituted a breach of the 1921 contract between Washington and Waterbury.
After a court trial, the trial court found for the defendants on the CEPA, riparian rights and contract claims, and for Waterbury on the public and private nuisance claims. The court then entered an elaborate order for injunctive relief.
I
THE CEPA CLAIM
Waterbury claims that the trial court improperly concluded that it violated CEPA by its operation of the Shepaug dam. Specifically, Waterbury asserts that the trial court: (1) lacked subject matter jurisdiction over the CEPA claim because the defendants had failed to exhaust their administrative remedies; (2) improperly declined to apply the minimum flow statute; General Statutes §§ 26-141a through 26-141c; when evaluating the CEPA claim; and (3) improperly concluded that Waterbury’s conduct had resulted in an unreasonable impairment of the public trust under CEPA. We conclude that: (1) the defendants were not required to exhaust administrative remedies before bringing their CEPA claim in the trial court; (2) the trial court’s finding of an unreasonable impairment is not consistent with the statutory scheme that the legislature has established in the area of watercourse management; and (3) the minimum flow statute governs the substantive analysis of whether Waterbury’s conduct has resulted in the unreasonable impairment of the Shepaug River.
To resolve the question of whether Waterbury’s diversion of water from the Shepaug River violated CEPA, the trial court was required to determine whether Waterbury’s diversion was of such magnitude that it
Waterbuiy offered several special defenses to Washington’s CEPA claim, which, it argued, prevented the trial court from ordering any injunctive or declaratory relief pursuant to § 22a-16. Among such defenses were the claims that: (1) No. 252, § 1, of the 1893 Special Acts, which authorized Waterbury to “take and convey from any or all brooks, rivers, springs, ponds, lakes, and reservoirs within the limits of . . . the county of Litchfield, such supply of water as the necessities or convenience of the inhabitants of said city may require,” and No. 252, § 3, which authorized Waterbury “in general, to do any other acts necessary or convenient for accomplishing the purposes contemplated by this act,” vested certain rights in Waterbury to take water from the Shepaug River and that any retroactive application of CEPA would constitute a taking of those vested rights;
The trial court rejected these defenses and determined that Waterbury’s current use of the Shepaug River constituted an “unreasonable impairment of the public trust in the natural resource at issue, a flowing river.” On appeal, Waterbury reasserts the aforemen
A
Exhaustion of Administrative Remedies
We first address Waterbury’s contention that the trial court lacked subject matter jurisdiction over the CEPA claim because the defendants failed to exhaust their administrative remedies. Specifically, Waterbury argues that the question of how much water it is required to release down the Shepaug River is governed by the minimum flow statutes, §§ 26-141a through 26-141c,
The defendants argue that, because Waterbury was the party that sought a declaratory judgment that it had not violated CEPA, thereby inviting the trial court to decide the issue, Waterbury should now be estopped from asserting this claim on appeal. The defendants also argue that it would be particularly inappropriate in this case to entertain Waterbury’s jurisdictional claim, where the trial court “[a]t closing argument . . . invited the parties to comment on whether it ha[d] jurisdiction to decide all issues in the case.” The only potential issues so identified for initial agency consider
“We note at the onset that... a claim that this court lacks subject matter jurisdiction [may be raised] at any time. Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . The objection of want of [subject matter] jurisdiction may be made at any time . . . and the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings. ... If at any point, it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed.” (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 787-88, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998). Although we previously have noted “that there are limits to the notion that subject matter jurisdictional defects may be raised at any time”; (internal quotation marks omitted) Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 150, 763 A.2d 1011 (2001); see also Vogel v. Vogel, 178 Conn. 358, 362-63, 422 A.2d 271 (1979); those limits were invoked in cases involving collateral attacks on judgments that had been fully litigated, and which all parties had had the opportunity for appellate review. Although there may be instances in which a party who has invoked the jurisdiction of the court will not be permitted to claim later that the same court lacked jurisdiction, this is not that case, especially where two of the cases that Waterbury relies on for this claim,
On the merits of the jurisdictional issue, Waterbury argues that our holdings in Fish I, Fish II and Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993), required the defendants first to exhaust all administrative remedies before bringing this action. Waterbury further asserts that the minimum flow statute applies to the Shepaug River, and therefore establishes the amount of water that Waterbury is required to release. Because the department is charged with enforcement of the minimum flow statute, Waterbury contends, the trial court had no jurisdiction over this claim. The defendants argue, to the contrary, that the minimum flow statute does not apply to the Shepaug River. Although Waterbury disagrees, it claims that even this fundamental question is one for the department, not the courts, to resolve. We disagree with Waterbury’s claim, and conclude that CEPA, as particularly demonstrated by General Statutes § 22a-18,
“The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. . . . The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. . . . McKart v. United States, 395 U.S. 185, 193, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969). . . . Johnson v. Statewide Grievance Committee, 248 Conn. 87, 95, 726 A.2d 1154 (1999). Where a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the doctrine would be consistent with the statu
Thus, the exhaustion doctrine is based on a judicial determination of a legislative intent that in certain cases the courts do not have initial subject matter jurisdiction because the legislature has committed the initial resolution of the matters in question to an administrative agency. Therefore, this doctrine does not apply when the legislature determines, by appropriate legislation, that a court may exercise subject matter jurisdiction despite the fact that there also may be administrative procedures available that would, absent such legislation, normally deprive the court of jurisdiction. The defendants argue that CEPA, particularly § 22a-18 (b), is such appropriate legislation. We agree.
Whether the legislature intended that the exhaustion doctrine apply to CEPA presents a question of statutory interpretation. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to
We begin our analysis with the text of the statute. Section 22a-18 (b) provides in relevant part: “If administrative, licensing or other such proceedings are required or available to determine the legality of the defendant’s conduct, the court in its discretion may remand the parties to such proceedings. . . . [T]he court shall retain jurisdiction of the action pending completion of administrative action for the purpose of determining whether adequate consideration by the agency has been given . . . .” (Emphasis added.) The statutory language of § 22a-18 (b) strongly suggests that CEPA does not embody the exhaustion doctrine.
“We have consistently held that may is directory rather than mandatory. See, e.g., Seals v. Hickey, 186 Conn. 337, 345-47, 441 A.2d 604 (1982). The word may, unless the context in which it is employed requires otherwise, ordinarily does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion. See id., 345; Ridgeway v. Ridgeway, 180 Conn. 533, 540, 429 A.2d 801 (1980); see also A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 611, 577 A.2d 709 (1990).” (Internal quotation marks omitted.) Office of Consumer Counsels. Dept. of Public Utility Control, 252 Conn. 115, 122, 742 A.2d 1257 (2000). The legislature’s use of the word “shall” elsewhere in § 22a-18 (b), and the use of both terms throughout CEPA, further support our interpretation. “The use of the word shall in conjunction with the word may confirms that the legislature acted with complete awareness of their different meanings; Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 506, 522 A.2d 264 (1987); and that it intended the terms to have different meanings. Hinchliffe v. American
Thus, the plain language of § 22a-18 gives the trial court discretion on whether to remand an action to an administrative agency that has within its jurisdiction, appropriate “administrative, licensing or other such proceedings . . . .” General Statutes § 22a-18 (b). Furthermore, as the defendants suggest, to conclude, as Waterbury urges, that the defendants must first turn to the department for a determination of whether the minimum flow statute applies, would render § 22a-18 a nullity. If a party were required to exhaust all administrative remedies before resorting to an independent action under CEPA, § 22a-18 (b) could never be invoked, because a trial court would never have had jurisdiction in the first place so as to be able to “remand the parties to [administrative, licensing or other] such proceedings.” General Statutes § 22a-18 (b). We ordinarily do not read statutes so as to render parts of them superfluous; Giaimo v. New Haven, 257 Conn. 481, 493-94, 778 A.2d 33 (2001); and we see no compelling reason to do so with respect to § 22a-18.
An examination of the legislative history surrounding the enactment of CEPA further reinforces our conclusion that § 22a-18 was meant to trump the exhaustion doctrine. One of the overriding objectives of CEPA is to “enable persons to seek redress in the court when someone is [polluting] our environment.” Conn. Joint Standing Committee Hearings, Environment, Pt. 1, 1971 Sess., p. 163, remarks of James Wade, counsel for the majority leadership in the House of Representatives. The bill was intended to “[expand] the right of a person
Although there was widespread support for permitting citizen suits concerning the environment, there was considerable debate over whether citizens must first exhaust all administrative remedies before being able to bring a separate action. When the environment committee held hearings on House Bill No. 5037, which, after several modifications, was passed as CEPA, the language of § 5 (1) through (4) was identical to what is now § 22a-18 (a) through (d). This concerned a number of groups who testified before the committee, and who therefore urged the legislature to modify the bill and require a citizen to turn first to the appropriate administrative agency for relief before bringing suit in the Superior Court.
Dale Van Winkle, of United Aircraft Corporation, testified that “we’re not opposed to a citizen-enforcement; however, we would like to see this done in the way that it’s done in other areas of law, and that is that the
It was not solely business interests that urged the legislature to apply the exhaustion doctrine to CEPA claims. David B. Beizer, the executive director of Connecticut Action Now, stated that “the only good criticism that’s been made of these bills, is that we should rely to the extent we can on the administrative process. I wholeheartedly agree, and I think with a minor change in wording, this criticism can be taken care of. In other words, where there is an administrative agency . . . that agency should be consulted first, and administrative action should be sought first, prior to the citizen going to court.” Id., p. 216.
Many representatives felt that the agencies were not policing the environment as aggressively as they should. Representative Francis J. Collins stated: “[T]his is a necessary bill because it may well prod many of our state agencies charged with the protection of the environment . . . into more thorough and responsive carrying out of the legislative programs.” Id., p. 745. They viewed this bill as intending to permit “an individual or a group to seek redress without waiting to go through the water resources commission
When the bill reached the Senate, however, Senator Dowd offered Senate Amendment Schedule A, which would have substituted the word “shall” for “may” in what is now General Statutes §§ 22a-18 (b) and 22a-20.
Thus, given the plain language of § 22a-18 and the legislative histoiy of CEPA, the conclusion is inescapable that CEPA does not embody the exhaustion doctrine as a subject matter jurisdictional limit on the court’s entertainment of an action under it. The language is discretionary. The committee reported the bill out with that language unchanged. The legislative history evinces an intent not to incorporate the exhaustion doctrine. A specific attempt in the Senate to amend it by inserting the exhaustion doctrine was defeated. Therefore, we conclude that, on the facts of this case, the defendants were not required to exhaust their administrative remedies, and that the trial court had subject matter jurisdiction over the defendants’ CEPA claims.
Despite the language of § 22a-18 and its accompanying legislative history, Waterbury, implicating the
We acknowledge that Waterbury’s position is similar to that of the defendants in Middletown v. Hartford Electric Light Co., 192 Conn. 591, 473 A.2d 787 (1984), and Fish II, supra, 254 Conn. 21, two cases relied upon by Waterbury in advancing the argument that the proper forum for resolution of the CEPA issue was in the first instance, the department. In Middletown v. Hartford Electric Light Co., supra, 597, and Fish II, supra, 31, we concluded that, pursuant to the doctrine of exhaus
Although this court has never directly addressed the relationship between the exhaustion doctrine and § 22a-18, we have addressed it in conjunction with §§ 22a-16 and 22a-19. These two sections provide citizens with several avenues with which to seek judicial redress. Section 22a-16 governs independent court actions under CEPA, and § 22a-19 governs interventions into certain proceedings in order to assert CEPA environmental claims. Pursuant to § 22a-16, the “Attorney General . . . any person, partnership, corporation, association,
We previously have addressed the reach of these two provisions in Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 470 A.2d 1214 (1984), and Middletown v. Hartford Electric Light Co., supra, 192 Conn. 591. In Connecticut Fund for the Environment, Inc. v. Stamford, supra, 248, one of the plaintiffs, the Better Neighborhood Association of Stamford (association), intervened in an administrative proceeding conducted by the Stamford inland wetland agency, denominated as the environmental protection board (board), pursuant to § 22a-19 (a), in which the board was reviewing an application for the development of a large tract of land to be used as apostal facility. After the board approved the project, the association appealed on the ground that the board had excluded certain environmental evidence, even though the evidence was not related to inland wetlands, which was all that the board was charged with addressing. Id., 249-50. In affirming
We then addressed the reach of § 22a-16 in Middletown v. Hartford Electric Light Co., supra, 192 Conn. 591. In that case, the plaintiffs brought an action in the Superior Court to enjoin the defendants from burning PCB contaminated mineral oil at the defendants’ generating plant. Id., 592-93. The trial court dismissed the four counts of the complaint that alleged that the defendants had failed to obtain various permits needed to dispose of PCBs, on the ground that the plaintiffs lacked standing. Id., 595. On appeal, the plaintiffs contended that § 22a-16 gave them standing to bring an action to protect the environment from the damage that the PCB disposal could cause; id., 596-97; because § 22a-16 allowed “any person . . . [to] maintain an action in the superior court ... for the protection of the public trust in the air . . . from unreasonable pollution
We affirmed the trial court’s dismissal of the plaintiffs’ action. In applying our reasoning under § 22a-19, set out in Connecticut Fund for the Environment, Inc., we reaffirmed “that invocation of [CEPA] is not an open sesame for standing to raise environmental claims with regard to any and all environmental legislation. . . . These same principles [as enunciated in Connecticut Fund for the Environment, Inc.] apply to bar the city’s standing under the licensing statutes. The trial court was therefore correct in concluding that § 22a-16 did
In Polymer Resources, Ltd. v. Keeney, supra, 227 Conn. 545, we returned to the issue of standing, although not in the context of CEPA. In Polymer Resources, Ltd., the commissioner of the department had issued an ex parte cease and desist order under General Statutes § 22a-7 against the plaintiff ordering it to cease various manufacturing processes until proper corrective action was taken. Id., 549. The plaintiff,
We applied the reasoning of Polymer Resources, Ltd., to a claim brought under CEPA in Fish I, supra, 254 Conn. 7, where the plaintiffs, in addition to intervening in the defendants’ permit renewal proceedings before the department, brought an action in the Superior Court under § 22a-19. Although recognizing the exhaustion doctrine, the plaintiffs contended that “they [were] excused from compliance because the injunctive relief they [sought] was not available through the administrative process.” Id., 14. Specifically, they argued that resorting “to the administrative remedies would have
Argued at the same time was Fish II, supra, 254 Conn. 28, wherein we rejected the plaintiffs’ argument that, despite their failure to exhaust administrative remedies, they could maintain a separate action under § 22a-16. Although we recognized that “§ 22a-16 abrogates the aggrievement requirement for bringing an action directly in the Superior Court, our case law explains the limitations of § 22a-16, and elaborates why the plaintiffs must pursue their claim by intervening in an administrative hearing before the department pursuant to § 22a-19.” Id., 31. We declined to allow the plaintiffs to “use § 22a-16 as an ‘open sesame’ to litigate environmental issues that are governed by [General Statutes] § 22a-430, and which clearly have been placed within the exclusive domain of the department”; id., 34; and thus held that the plaintiffs lacked standing under § 22a-16 to bring their action.
Waterbury argues that the defendants’ entire complaint is premised on the lack of flow in the Shepaug
As we have explained previously, a proper reading of § 22a-18 precludes the application of the exhaustion doctrine. To continue to apply it to an action brought pursuant to § 22a-16 would be to defy both the language and purpose of § 22a-18. Moreover, in neither Middle-town, Fish I nor Fish II, were we apprised of the interplay among § 22a-18 and §§ 22a-16 and 22a-19. Now that this argument is before us, however, we cannot continue to apply the exhaustion doctrine to claims brought under CEPA. To the extent that this holding conflicts with our previous decisions applying the exhaustion doctrine to an independent action under § 22a-16, namely, Middletown, Fish I and Fish II, we overrule them.
Our rejection of the applicability of the exhaustion doctrine to CEPA actions brought pursuant to § 22a-16 does not mean, however, that a court having subject matter jurisdiction of such an action is therefore free to disregard any relevant and appropriate administrative
B
The Minimum Flow Statute
Having determined that the trial court had jurisdiction to entertain Waterbury’s declaratory judgment action and the defendants’ counterclaims concerning a potential violation of CEPA, we turn now to the merits of Waterbury’s appeal. Waterbury claims that the trial court improperly concluded that the operation of the Shepaug dam resulted in an unreasonable impairment of flow in the Shepaug River under CEPA by: (1) applying an improper legal standard in determining whether there was an impairment; and (2) applying an incorrect legal standard in determining whether the impairment was unreasonable, by failing to evaluate the CEPA claim in terms of the minimum flow statute. We conclude that: (1) the trial court applied the appropriate legal standard in its determination that the Shepaug River was impaired; and (2) it applied an improper legal standard in determining whether the impairment was unreasonable, because under the circumstances of this case, the Shepaug River is a watercourse that is subject to the minimum flow statute, and that statute gives substantive content to the determination of whether the impairment was unreasonable.
Before addressing these issues, we briefly set forth the standard by which we review the trial court’s actions. The meaning of the words impairment and unreasonable impairment, for purposes of CEPA, pre
1
Impairment
The trial court, after noting that CEPA does not define the term “impairment,” observed that “the erection of a dam across a river alters that river.” The trial court concluded that, under CEPA, the Shepaug River was impaired during the months of May through October
2
Unreasonable Impairment
We next determine whether the impairment is unreasonable. The defendants argue that the trial court, rely
Waterbury argues that Manchester Environmental Coalition addressed only the issue of unreasonable pollution, not unreasonable impairment, and that our decision in Fish II requires us to make an unreasonableness inquiry with reference to the substantive law of the case, here, the minimum flow laws. We agree with Waterbury, albeit for different reasons, and we conclude that the trial court’s interpretation oí Manchester Environmental Coalition as standing for the proposition that the only meaning of the term “unreasonable impairment” is something more than de minimis was improper. On the facts of the present case, the term “unreasonable impairment” must be evaluated through the lens of the entire statutory scheme, if any, that the legislature has created to regulate the conduct underlying the impairment.
What constitutes an unreasonable impairment for purposes of deciding whether a violation of CEPA has occurred in the Shepaug River is a question of statutory construction. As previously stated, the term “impairment” is undefined in CEPA, as are the express eircum
For us to conclude, as the trial court did in this case, that unreasonable means only some level more than de minimis, the only evidence a defendant would be able to offer to rebut a prima facie case would be evidence that there was no pollution, impairment, or destruction of the natural resource. Thus, in many circumstances, particularly when dealing with a dammed watercourse where some level of impairment is practically assured, the defendant’s only defense would be the separate affirmative defense that, “considering all relevant surrounding circumstances and factors, there is no feasible and prudent alternative to the defendant’s conduct and that such conduct is consistent with the reasonable requirements of the public health, safety and welfare.” General Statutes § 22a-17 (a).
An examination of the legislative history of CEPA, however, reveals that § 22a-17 was not meant to relegate a defendant to disproving a CEPA violation solely by resorting to this affirmative defense. Representative Papandrea, when explaining the burden shifting mechanism of CEPA, stated: “Once having brought the law suit, the plaintiff, the person who brings the law suit, [has] the burden of proving not just the fact that pollution has, or is about to occur. He must prove that the pollution complainfed] of is unreasonable and unavoidable. . . . Since unreasonableness is a matter of fact to be determined by the judge after listening to both sides and all of the evidence which they have to present, there is no question that the judge will have access to
The argument that unreasonable means anything more than de minimis is further undercut by the legislators’ belief that CEPA would not unduly interfere with business operations. When some legislators expressed concern that CEPA could prevent a farmer from spraying his crop with pesticides, Representative John G. Matthews commented: “[T]he Bill in my estimation would not prohibit him from using a spray, he has the right to earn his living in his profession or occupation, and certainly unless he sprays indiscriminately all over and destroys things well beyond his own property line, there is certainly no restriction on it.” Id., p. 750. This comment was echoed by Representative Papandrea whenhe stated: “[T]his [bill] does not in any way expand the present common law right of any individual in the state of Connecticut to bring a lawsuit in nuisance against anyone who is directly damaging him or his property by way of pollution. . . . [T]here is already in this state an action at law available to an abutting property owner.” Id., pp. 738-39. Moreover, some legislators expressed concern that CEPA could be used as a mechanism to drive away businesses. In fact, at least in the eyes of one legislator, “[t]he Bill has been presented by the majority leadership as being so protective to the business community, to the farmer, as to make the Bill [innocuous]. The protective measures are such that we are lead to believe that technically no action
Despite this statutory text and legislative history, the defendants urge us to reaffirm our conclusion in Manchester Environmental Coalition v. Stockton, supra, 184 Conn. 58, that the “word ‘unreasonabl[e]’ [in the context of pollution]
We reached this conclusion based solely on the comments of Attorney Wade. While discussing the differences between House Bill No. 5037, which included the word “unreasonably” and was enacted into law, and Senate Bill No. 400, which did not contain the word “unreasonably,” Wade stated: “Now in framing this legislation, it was our judgment that all of us pollute the environment to one degree or another, simply by breathing, obviously we introduce elements into the environment which are not natural. And therefore, if we are going to permit the use of the courts by citizens to bring law suits against those who do pollute the environment, we believe there must be a check to prevent those suits which are brought simply for harassment, and for no other purpose. Therefore, [House Bill No.] 5037, which Speaker [William R.] Ratchford has introduced, permits law suits against those who unreasonably pollute the environment. . . . [I]f [Senate Bill No.] 400 were passed with no check, then you might wind up with spite suits between neighbors and that sort of thing over conditions that are nothing more than spite between neighbors. We feel our bill, which imposes the reasonable standard, would be such as to eliminate that possibility.” Conn. Joint Standing Committee Hearings, supra, p. 162.
Although, taken in isolation, these comments may suggest that the term “unreasonable” meant only any impairment more than de minimis, Wade’s next comments contradict that meaning. Immediately after Wade made his comments explaining the insertion of the word “unreasonable” into House Bill No. 5037, he stated: “I recognize the fact that a person or company or corporation could be polluting the environment, andhispollu
If the term “unreasonable” meant only anything more than de minimis, the act of dumping any filth or pollution into a watercourse necessarily would be unreasonable. It could not be contended that the suit was being brought solely for harassment purposes, and unless we were to subscribe to the notion that it would be permissible to dump pollution in small quantities and let the water dilute it, this polluting activity would likely cause more than a de minimis effect on the watercourse. Thus, if one can “pollut[e] the environment, and [that] pollution alone is not unreasonable”; id., p. 162; then the word “unreasonable” must have some meaning other than anything more than de minimis.
Even Manchester Environmental Coalition itself, despite its language to the contrary, envisioned a scheme in which a prima facie case consisted of more than the mere production of evidence illustrating something more than de minimis pollution, impairment or damage. In that case we stated: “Once a prima facie case is shown, the burden of production shifts to the defendant. Under § 22a-17, ‘the defendant may rebut
We draw this conclusion from the overriding principle that statutes should be construed, where possible, so as to create a rational, coherent and consistent body of law. See, e.g., Doe v. Doe, 244 Conn. 403, 428, 710 A.2d 1297 (1998) (“we read related statutes to form a consistent, rational whole, rather than to create irrational distinctions”); In re Valerie D., 223 Conn. 492, 524, 613 A.2d 748 (1992) (“ ‘[statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law’ ”). It would be inconsistent with that principle to
In this connection, we acknowledge that, as our previous discussion regarding the legislative rejection under CEPA of the exhaustion doctrine demonstrates, when CEPA was enacted there was significant legislative skepticism regarding the efficacy of the environmental regulatory agencies and, therefore, the legislature evinced an attitude favoring initial judicial, as opposed to initial regulatory, determinations of whether specific questioned conduct constituted unreasonable pollution, impairment or destruction of a natural resource.
Furthennore, a contrary conclusion would also mean that, in defending against what a court deems to be a prima facie case of unreasonable conduct under CEPA, the only defense that could be offered would be the affirmative defense that there was no feasible and prudent alternative to the defendant’s conduct. As will be
3
The Minimum Flow Statute
Having concluded that whether a watercourse has been unreasonably impaired may depend on a relevant regulatory scheme established by the legislature, we turn to Waterbury’s claim regarding the minimum flow statute. Waterbury claims that flow in the Shepaug River is regulated by the minimum flow statute. Therefore, Waterbury asserts, as long as it was in compliance with that statute and its accompanying regulations, it could not be in violation of CEPA. The defendants argue that, assuming that the minimum flow statute applies to the Shepaug River, the trial court correctly concluded that the minimum flow statute was not intended to define “unreasonable impairment” of the river, because the minimum flow statute is concerned only with the protection of fish. We agree with Waterbury, and conclude that the minimum flow statute is the standard by which
We first turn to the question of whether the minimum flow statute applies to the Shepaug River. “Because statutory interpretation is a question of law, our review is de novo.” Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995). The trial court held, on Waterbury’s motion for reconsideration, that the minimum flow statute did not apply to releases from the Shepaug dam because the only indication of stocking was “evidence that relates to stream flow at a point in Roxbury, where the flow is a combination of the west branch of the Shepaug River and of the contribution of the Bantam River.” There was “no evidence of stocking of the stream primarily affected by [Waterbury’s] diversion of water, that is, the river between the dam and the confluence of the Bantam River.”
Because the trial court only referred to the stocking in terms of evidence as opposed to fact, it is unclear whether the trial court made a finding that there was stocking of the Shepaug River at Roxbury. We note, however, that the evidence reviewed by the court in this regard was undisputed at trial, and it is not challenged on appeal; only the legal consequences resulting from the alleged stocking are challenged. Moreover, on appeal, the defendants, the department and the attorney general all assume that the Shepaug River is a stocked river, but nevertheless argue, for reasons that we will discuss, that the minimum flow statute does not govern the CEPA claim. Therefore, we decide this appeal on
Given this assumption, we address the trial court’s conclusion that for the minimum flow statute to apply to the Shepaug River, stocking must occur at the area “primarily affected by the . . . diversion,” which in this case is the area between the Shepaug dam and the confluence with the Bantam River. Section 26-141a defines the scope of the minimum flow statute and provides: “Whenever any dam or other structure is maintained in this state which impounds, or diverts, the waters of a river or stream which is stocked with fish by the Commissioner of Environmental Protection, or which dam or other structure affects the flow of water in such a stocked river or stream, the commissioner may promulgate regulations setting forth standards concerning the flow of such water in accordance with section 26-141b.” (Emphasis added.) Section 26-141b required the department, on or before July 1,1973, to “promulgate regulations establishing instantaneous minimum flow standards and regulations for all stocked river and stream systems.”
Section 26-141a-3 (a) of the Regulations of Connecticut State Agencies provides in relevant part: “These regulations shall apply to any dam or other structure which impounds, or diverts waters, located on those watercourses which are listed in an annual publication
We now turn, therefore, to Waterbury’s claim that the trial court improperly declined to apply the minimum flow statute in determining whether Waterbury’s releases from the Shepaug dam violated CEPA. The trial court concluded that “minimum stream flows applicable to state-stocked fishing areas do not establish the standard for adjudicating impairment under [CEPA]. The CEPA does not adopt as a standard the flow rate set forth in [General Statutes] § 26-141, which is concerned with the narrow issue of fish, not with the overall environmental status of the river with regard to the broader
The question of whether the minimum flow statute defines the standard by which the trial court was required to evaluate the defendants’ CEPA claim presents a question of statutory interpretation. Section 26-141b instructs the commissioner of the department to “promulgate regulations establishing instantaneous minimum flow standards and regulations for all stocked river and stream systems.” The legislature gave the commissioner detailed guidance concerning the criteria to be used when developing these regulations. For example, the commissioner is charged with “recognizing and providing for the needs and requirements of public health, flood control, industry, public utilities and water supply, and further recognizing and providing for stream and river ecology, the requirements of aquatic life, natural wildlife and public recreation, and . . . considering the natural flow of water into an impoundment or diversion . . . .” General Statutes § 26-141b. Furthermore, “[s]uch instantaneous minimum flow standards and regulations shall: (1) Apply to all river and stream systems within this state which the commissioner finds are reasonably necessary to keep a sufficient flow of water to protect and safely maintain the fish placed therein by him pursuant to his stocking program; (2) preserve and protect the natural aquatic life, including anadromous fish, contained within such waters; (3) preserve and protect the natural and stocked wildlife dependent upon the flow of such water; (4) promote and protect the usage of such water for public recreation-, (5) be consistent with the needs and requirements oí public health, flood control, industry, public utilities, water supply, public safety, agri
Nothing in the language of this statute suggests that it is concerned only with the narrow issue of maintaining the safety of fish, as the trial court concluded. Instead, the factors required to be considered by the department when establishing the minimum flow levels encompass a wide variety of concerns and competing interests over and above that of maintaining the fish in the stocked streams. Moreover, subdivisions (2), (3), (4) and (5) of § 26-141b concern natural unstocked wildlife, aquatic life in the water, public recreation and health, flood control, industry, public utilities, water supply, public safety, agriculture, and other lawful uses of the water. In addition, an examination of several other regulations, enacted to enforce the minimum flow statute, reinforce the fact that the legislature and the department were concerned with more than protecting fish. Section 26-141a-4 (a) (3) of the Regulations of Connecticut State Agencies allows the department to grant exemptions or variances from the minimum flow statute, but only after taking into consideration numerous factors, including the “preservation, protection and safe maintenance of the river and stream stocking program . . . ,”
The legislative history confirms that this act was concerned with providing a healthy environment for more than just fish. Although the bill establishing the minimum flow statute was drafted by the Connecticut Fly Fishermen’s Association, it is clear that their aim went far beyond ensuring that they would have sufficient water in which to fish. The coauthor of the bill, Mark Levy, stated: “[W]e feel that we have a workable piece of legislation here, which will provide and solve the problem of low flow in certain streams in the state. ... I believe this bill takes care of the requirements of the water companies and the requirements of the public utilities, power companies. We are not asking them to empty their pilements . . . what we are asking is that standards be set forth by water resources to [require] a minimum amount of water to come out of these impoundments so that the ecology of the stream will be maintained, so that the stocking program can be kept in good condition, and for the general benefit of the public, canoeing recreation etc., that all of our streams will produce.” Conn. Joint Standing Committee Hearings, supra, pp. 250-51. Another member of the association testified that his organization was “particularly interested in this legislation because we feel it is essential for the proper environmental control of our
On the basis of the language of § 26-141b and its legislative history, we conclude that the minimum flow statute was intended not only to protect the state’s fish stocking program, but was designed to accommodate many interests and concerns, including having sufficient water available for “natural aquatic life,” “natural
The defendants also contend that CEPA was intended to prevent precisely what we are permitting here, namely, allowing a statute that encompasses a variety of interests to take precedence over CEPA, which is concerned solely with the health of a particular natural resource. In other words, the defendants argue that the “unreasonable impairment” of the Shepaug River must be measured by a standard that considers only the health of that river, not by a statute of more general applicability, developed with interests other than those concerning the health of only the Shepaug River. We find nothing in the language, purpose or legislative history of CEPA to support this claim. Although, as the intervenor fund points out, the legislature passed CEPA in part due to great frustration with the perceived inadequacy of the then existing administrative agencies,
The defendants also argue that, regardless of the intent behind the minimum flow statute, the regulations as currently drafted have no ecological underpinnings, and do not adequately protect the health of the Shepaug River. The defendants point to the testimony of two department employees, who both stated that they were unaware of any ecological foundation for the regulations.
The challenged regulations became effective on April 24, 1979. No documentation could be found, however, to explain the basis of the regulations. Considering that
The defendants also list several features of the regulations that allegedly undermine the idea that they were intended to protect more than the health of fish. First, the defendants point out that the regulations only apply to stocked streams, and then only to those that the department believes need regulation for “the protection and maintenance of such stocking . . . Regs., Conn. State Agencies § 26-141a-3 (a). Second, the regulations contain provisions for an operator of a diversion to avoid compliance with the regulations through (1) variances, (2) exemptions and (3) declaration of a water supply emergency. Regs., Conn. State Agencies § 26-141a-4. The defendants assert that these features make
Under the circumstances of this case, therefore, we conclude that whether the degree of impairment of the Shepaug River resulting from the dam was unreasonable within the meaning of CEPA must be determined by whether the flow in the Shepaug River meets the requirements of the minimum flow statute and the regulations promulgated thereunder. The trial court improperly concluded as a matter of law that the minimum flow statute did not apply to Waterbury. A new trial is therefore required as to the parties’ CEPA claims.
As we explained in part IA of this opinion, this language indicates that the legislature intended to supplant the exhaustion doctrine and to permit courts to hear
“The doctrine of primary jurisdiction is a rule of judicial administration created by court decision in order to promote ‘proper relationships between the courts and administrative agencies charged with particular regulatory duties.’ United States v. Western Pacific R. Co., 352 U.S. 59, 63, 77 S. Ct. 161, 1 L. Ed. 2d 126 [1956], Its basis is the concept that courts and administrative agencies are, as Justice Frankfurter suggested, ‘collaborative instrumentalities of justice.’ United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 85 L. Ed. 1429 [1941].” Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 348, 363 A.2d 170 (1975). Under this doctrine, a trial court “has original subject matter jurisdiction of the questions raised in the complaint filed in that court. Primary jurisdiction . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. United States v. Western Pacific R. Co., supra, 64. . . . [A] court may not refer a controversy within its jurisdiction to an agency under this doctrine where the agency itself lacks jurisdiction; the court’s jurisdiction in such cases is exclusive. Collens v. New Canaan Water Co., 155 Conn. 477, 480-81, 234 A.2d 825 [1967]; 73 C.J.S., Public Administrative Bodies and Procedure, § 40.” (Citations
“In deciding whether to apply the primary jurisdiction doctrine to a given case, a court must take into account the need for uniform decisions and the specialized knowledge of the agency involved.” Fulton Cogeneration Associates v. Niagara Mohawk Power Corp., 84 F.3d 91, 97 (2d Cir. 1996); see also Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58-59 (2d Cir. 1994) (“[p]rimary jurisdiction applies where a claim is originally cognizable in the courts, but enforcement of the claim requires, or is materially aided by, the resolution of threshold issues, usually of a factual nature, which are placed within the special competence of the administrative body”). “As a threshold matter, of course, a court must find that the agency has jurisdiction over the issue presented.” Fulton Cogeneration Associates v. Niagara Mohawk Power Corp., supra, 97. We leave to the informed discretion of the trial court on retrial the question of whether to remand to the department the question of compliance with the minimum flow statute, to be determined in accordance with the standards embodied in the doctrine of primary jurisdiction.
II
RIPARIAN RIGHTS
Waterbury also claims that the trial court improperly determined that it had not established a prescriptive easement to use the waters of the Shepaug River and, consequently, had interfered with the riparian rights of the defendants.
Before addressing the merits of Waterbury’s claim, we briefly set forth the appropriate standard of review. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 122, 788 A.2d 83 (2002). Because, in the present case, Waterbury contests the correctness of the trial court’s legal conclusion,
We begin our analysis of this issue by setting forth the requirements for establishing a prescriptive easement. “[General Statutes §] 47-37 provides for the acquisition of an easement by adverse use, or prescription. That section provides: ‘No person may acquire a right-of-way or any other easement from, in, upon or over the land
The trial court in the present case found that Waterbury’s “adverse conduct [has not been] open and visible. The presence of the Shepaug dam has certainly been an open and visible barrier on the river since 1933. The operation of that dam is not, however, open and visible
Waterbury subsequently moved for reconsideration with respect to the issue of whether it had established a prescriptive easement. In its memorandum of decision on the motion, the trial court both affirmed and elaborated upon its earlier decision, explaining: “[T]he mere presence of the dam and its infrastructure did not constitute notice that Waterbury was impairing these defendants’ riparian rights by the method of its operation of the dam. The mechanism for controlling the diversions was not open and visible to the downstream landowners but was on restricted-access land owned by Waterbury. The variations in the flow of the river were affected by variations in rainfall, so that variations were not openly and visibly the results of the actions of Waterbury. . . . Waterbury [has] two sources of water: the Shepaug and the Wigwam watershed, seven miles away. The fact that Waterbury operated its public water system did not serve as an open and visible impairment of the defendants’ rights, since Waterbury was able to supply its citizens’ needs for water from the three reservoirs on its own land in the Wigwam watershed, with a capability of using water from the Shepaug only to an extent that did not create any open, visible impairment of the flow of the river. The evidence established that Waterbury’s impairment of these defendants’ riparian rights was not open and visible until Waterbury made major changes in the way it operated its water system in 1988-89, a period less than fifteen years prior to the institution of the defendants’ counterclaim for injunctive relief
In other words, the trial court concluded that, because Waterbury had, until 1988-89, taken most of its water from the Wigwam reservoir, the amount of water it took from the Shepaug River was insufficient for a downstream riparian owner to be put on notice that Waterbury was using the Shepaug dam to divert a portion of that river’s natural flow. After the water treatment plant was constructed, however, Waterbury diverted more water from the Shepaug River and less from the Wigwam watershed, because water from the Wigwam had to be pumped uphill to the treatment plant, while water diverted from the Shepaug River to the treatment plant via the aqueduct tunnel could be gravity fed. Because Waterbury began taking significantly more water from the Shepaug River after completion of the water treatment plant, the trial court found that from that point forward, a downstream riparian would have been able to distinguish that there was a decrease in flow down the Shepaug River resulting from the operation of the Shepaug dam.
In order to resolve the question of whether, under prescriptive easement law, the “open and visible” requirement applied to the impairment of the flow of the Shepaug River by virtue of the presence of the dam, as Waterbury contends, or to the impaired level of that flow by virtue of how Waterbury managed the flow, as the defendants contend, it is necessary first to determine the theory of riparian rights that pertained in this state at the relevant times. That is because, if Connecticut followed the natural flow theory of riparian rights during the period in question, then it is logical to conclude that any impairment of those riparian rights that was open and visible satisfies that requirement.
We conclude that, until 1982, Connecticut followed the natural flow theory of riparian rights. We also con-
Thus, in order to determine whether Waterbury’s conduct was open and visible, we first determine the extent of the riparian rights of the defendants. “A riparian proprietor is an owner of land bounded by a watercourse or lake or through which a stream flows, and riparian rights can be claimed only by such an owner.” Harvey Realty Co. v. Wallingford, 111 Conn. 352, 358, 150 A. 60 (1930). Until 1982, Connecticut subscribed to the natural flow theory of riparian water rights.
The natural flow theory was last reaffirmed in Dimmock v. New London, 157 Conn. 9, 15-16, 245 A.2d
In concluding that the plaintiffs were entitled to at least nominal damages, we stated: “A riparian owner is entitled to the natural flow of the water of the running stream through or along his land, in its accustomed channel, undiminished in quantity and unimpaired in quality. . . . Since it is a right which may be affected by prescription, the lower riparian owner is deemed to be injured as to such rights by any unlawful diversion
Because a party can recover for a violation of its riparian rights whenever the natural flow of a watercourse is diminished in quantity, without having to prove any perceptible damage, we conclude that the mere presence of a dam is sufficient to infringe on the rights of a downstream riparian owner. As the trial court in the present case noted, “the erection of a dam across a river alters that river. Instead of having natural flow, including natural seasonal variations in the amount of flow, a dammed river is affected by the storage function of the dam, which operates to hold some of the water from periods of high flow for use in some manner during periods of low flow.” (Emphasis added.) Because there does not have to be any “perceptible, actual damage”; Dimmock v. New London, supra, 157 Conn. 15; as long as Waterbury can prove that “a reasonably diligent owner would [have learned] of [the dam’s]
Because the trial court found that Waterbury’s operation of the Shepaug dam was not open and visible, it did not address whether Waterbury had satisfied the remaining elements necessary to establish a prescriptive easement, namely, that the Shepaug dam operated adversely to the defendants’ riparian rights, continuously for at least fifteen years, and under a claim of right. Nonetheless, “[w]e need not remand the case for the [trial] court’s decision on that issue if it can be determined as a matter of law on the record before us.” Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 552, 191 A.2d 557 (1963).
Upon reviewing the record, we conclude, as a matter of law, that Waterbury established all of the elements of a prescriptive easement as early as 1948. The trial court found that “the Shepaug dam has certainly been an open and visible barrier on the river since 1933.” (Emphasis added.) Because there was no evidence that the Shepaug dam ever ceased acting as an obstruction, the inference is inescapable that the dam has been a continuous barrier since 1933, a period much longer than the necessary fifteen years. As for the adversity requirement, a “[diversion is an act which in its nature must be considered adverse. It is of itself notice that it is adverse and in opposition to the rights of other riparian owners, since it is an act in excess of any use which the riparian owner may rightfully make of the stream.” (Internal quotation marks omitted.) S. O. & C.
Lastly, we address the requirement that Waterbury’s interference with the defendants’ riparian rights be made under a claim of right. “Use made under a claim of right means use that is made without recognition of the rights of the owner of the servient tenement.” (Internal quotation marks omitted.) Crandall v. Gould, supra, 244 Conn. 590. “A use by express or implied permission or license cannot ripen into an easement by prescription.” (Internal quotation marks omitted.) Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 515, 227 A.2d 83 (1967). Waterbury concedes, that with respect to Washington, its diversion was permitted pursuant to No. 252 of the 1893 Special Acts and the 1921 agreement with Washington. Thus, because Waterbury had Washington’s consent to divert water from the Shepaug dam, as the trial court concluded, Waterbury did not gain any prescriptive rights as against Washington.
With regard to the other defendants, namely, Roxbury, the Roxbury Land Trust, Inc., the Shepaug River Association, Inc., and the Steep Rock Association, Inc., however; see footnote 42 of this opinion; there is no evidence, nor do they claim, that there was any such permitted use. Given these facts, we conclude, as a matter of law, that Waterbury established a prescriptive easement against the riparian rights of the other defendants.
Having determined that Waterbury has established a prescriptive easement over the defendants’ riparian rights, we must determine the extent of this easement. “The extent of the right acquired is measured by the
Our case law teaches that, although a party may acquire a prescriptive easement to divert all the water in a particular stream, it will only establish a prescriptive easement for an amount that has become customary between the parties. In Adams v. Manning, 48 Conn. 477, 480 (1881), the defendants operated a dam and asserted “the absolute right to take sole charge and control of the dam, and to open and close its gates without regard to the wants of the petitioners and other riparian owners below . . . .” We concluded that, based on the long operation of the dam, all the parties had adjusted their usage and that the plaintiffs “had thus acquired a right to use this stored water in the reasonable, proper and customary manner and time of using it ... . [Therefore, the [defendants] had not the right to continue it in existence for storage and at
In Osborn v. Norwalk, 77 Conn. 663, 664, 60 A. 645 (1905), the city had built and maintained a dam for over thirty years and had diverted a large amount of water from the Silvermine River, to the detriment of the plaintiff. The plaintiff, although claiming to have been injured by the dam’s operation since 1871, only sued over the city’s behavior beginning in 1901, when the city increased its diversion, and then at times, rapidly discharged large quantities of water, flooding the plaintiffs land. Id. We held that, even if the city had established a prescriptive easement, “[a] right to a reasonable use of a riparian right does not justify its unreasonable use. . . . Nor could a right to divert water permanently from its natural course, to an extent not substantially injurious to the riparian rights of others, carry a right to divert it to an extent that was substantially injurious to them.” (Citation omitted.) Id., 665.
Although it is possible to read Adams and Osborn for the proposition that a party may obtain an easement only to divert an amount of water that is not injurious to other riparian owners; see also Wadsworth v. Tillotson, 15 Conn. 366, 372-73 (1843) (“[b]ut whatever may be the rights of any proprietor, or however acquired, it must be exercised in a reasonable manner, and so as not unnecessarily to injure the rights of others”); S. O. & C. Co. v. Ansonia Water Co., supra, 83 Conn. 611, makes clear that a party can acquire a prescriptive easement to divert all of the water in a particular stream.
The facts of S. O. & C. Co. are quite complex, however, a brief summary will be sufficient for our discus
On the question of whether the defendant had violated the plaintiff’s riparian rights to the natural flow from Beaver Brook, we held: “It follows that Hubbell, when he made his grant to the defendant in 1869, had gained the right to divert the waters of the brook away from the Fosdick land, or at least that part of it which concerns the present controversy, and that Fosdick had lost the right which had once attached to that land as riparian property. The defendant is, therefore, either by force of the Hubbell grant or otherwise, not open to an action by the plaintiff, as the grantee of Fosdick, for an invasion of those rights as they originally existed .... These considerations lead to the conclusion that as against this plaintiff the defendant has had, during the years covered by this action, and now has, the right to divert, appropriate, and use the waters of the stream in question ... to the fullest extent .... This being the case, it is a matter of unconcern whether or not the diversion and appropriation which has been there made has been one increasing with the years, and
We read these cases, therefore, as standing for the following propositions. First, when a party has, for the prescriptive period, diverted all the water from a watercourse, it has established a prescriptive easement to divert all the water, regardless of whether the diversion was later reduced, or the scope of the diversion fluctuated. Second, if a party has, for that period, not diverted all, but only a portion, of the water from a watercourse, however, then it will have established an easement only for an amount that has become customary between the parties. Finally, if there is subsequently a significantly increased change in usage, that new use may be considered unreasonable, and a new prescriptive period would start to run as to that increased usage.
Applying this law to the facts of the present case, we conclude that Waterbury’s prescriptive easement extends to a level that became “reasonable and customary” between itself and the defendants. Thus, Waterbury may have obtained a prescriptive easement for the maximum level of diversion that it can prove was maintained for a continuous fifteen year period. Waterbury has conceded, however, that it “does not . . . advocate that the scope of its prescriptive right exceeds those limitations [set in the 1921 contract] as interpreted by the trial court in its decision and as contained in the order for injunctive relief.” Indeed, it is those levels that form the basis for the conclusion that Waterbury’s use was as a matter of right. Therefore, a new trial is required for a determination of the scope of Waterbury’s prescriptive easement, which, by Waterbury’s concession, cannot exceed the levels set out in No. 252 of the 1893 Special Acts and the 1921 agreement between
As we have stated, however, if after gaining a prescriptive easement against the defendants, Waterbury subsequently significantly increased its usage of the Shepaug River beyond the level of use embodied in the easement, that increased usage may be considered unreasonable and, as to it, a new prescriptive period would begin to run. If Waterbury maintained that increased level of usage for the prescriptive period, it could have acquired a new, increased easement. If, however, it did not maintain that increased level for the prescriptive period and it nonetheless continues to maintain that level—in effect, if Waterbury changed the operation of its water supply so as to increase its diversion beyond the scope of its easement
Thus, on the remand, if the trial court determines that Waterbury has exceeded the scope of its easement, without gaining a new easement, the court must deter
The trial court, first, must determine whether the defendants currently possess any riparian rights with respect to the flow down the Shepaug River, or if this common-law right has been superseded by legislative enactment. In 1982, with the enactment of the diversion act, Connecticut made a transition from a common-law riparian rights to a regulated riparian rights state. The major change effectuated by this transition is that, now, a state agency will determine, in advance, what diversions are allowed and to what extent, rather than having trial courts apply common-law riparian rights principles and resolve disputes through litigation. J. Christman, Water Rights in the Eastern United States (K. Wright ed., 1998) pp. 29-30; J. Dellapenna, 1 Waters and Water Rights, supra, § 9.03 (b) (1), p. 493 (“[r]egulated riparian statutes delegate to an administrative agency the right to decide who among competing applicants, will receive the right to use water, terms and conditions under which they will hold that right, and when, where, and how that right will end”).
The diversion act requires that any party seeking to divert water after July 1, 1982, first obtain a permit from the department. When the legislature enacted the diversion act, it exempted all those current diversions from the permitting system, but ordered the holders of the existing diversions to register with the department “on a form prescribed by [it] the location, capacity, frequency and rate of withdrawals or discharges of said diversion and a description of the water use and water
Additionally, if the trial court determines that the defendants retain riparian rights with respect to the exempted diversion, it must decide what standard will govern its examination of whether Waterbury violated these rights: either some type of reasonableness inquiry, as indicated in the model code
Ill
CONTRACT CLAIM
On its cross appeal, Washington contends that, although the trial court correctly concluded that Waterbury had breached its 1921 contract
In response to Washington’s cross appeal, Waterbury asserts that: (1) Washington has not provided an adequate record to review this claim; (2) even if the record is adequate, Washington has not met its appellate burden of demonstrating that the trial court’s interpretation of the 1921 contract, upon which it ordered its relief, was clearly erroneous; and (3) the equitable relief fashioned by the trial court to cure Waterbury’s breach of the 1921 contract was not an abuse of the trial court’s discretion and, therefore, can not be disturbed. We remand this cross appeal to the trial court for imposition of a new relief order, albeit on a different ground than that asserted by Washington. Therefore, we need not address Waterbury’s arguments.
After the trial court found that Waterbury had violated Washington’s CEPA and contract rights, it issued one relief order
Because, in part I of this opinion, we concluded that the trial court must evaluate Waterbury’s alleged CEPA violation by determining whether the flow in the Shepaug River meets the requirements of the minimum flow statute, we undermined the trial court’s order to Waterbury to restore natural flow to the Shepaug River as a remedy under CEPA. This necessarily raises a question of whether the trial court’s remedy for Waterbury’s contract violation may stand independently of the CEPA issues. We conclude that it may not.
When the trial court fashioned its uniform remedial order, it did so on the premise that Waterbury’s conduct violated both CEPA and its contract with Washington. It is apparent to us, moreover, that the entire order, particularly the first and fifth provisions, constituted a remedial mosaic. On this record, therefore, we cannot be confident that, had the CEPA claim been determined pursuant to the minimum flow statute—as it must, at
The judgment is reversed and the case is remanded to the trial court for a new trial on the CEPA claim and the riparian rights claim, and for a new remedy on the contract claim.
In this opinion the other justices concurred.
Waterbury appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).
Waterbury brought its complaint for a declaratory judgment against the following defendants: Washington; the town of Roxbury (Roxbury); the Roxbury Land Trust, Inc.; the Shepaug River Association, Inc..; and the Steep Rock Association, Inc. We refer to these parties collectively as the defendants.
In addition, the Connecticut Fund for the Environment, Inc. (fund), intervened as a defendant and asserted several counterclaims against Waterbury. Although the fund’s claims were severed when it did not close its pleadings in time for trial, it was permitted to participate in the trial, and filed a brief in this appeal in support of the defendants. The commissioners of public health and of environmental protection, and the state attorney general also intervened, but were not denominated as either plaintiffs or defendants. The attorney general and the department of environmental protection (department) filed a combined brief in this appeal in support of the defendants. Marc F. Greene also intervened as a defendant, appearing pursuant to notice by publication submitted by Waterbury. He filed no pleadings, and adopted and endorsed those filed by the defendants. He has filed nothing
Washington cross appealed from the judgment of the trial court to the Appellate Court, and we transferred the cross appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).
The trial court ruled in favor of Waterbury on the issue of whether its actions constituted a public or private nuisance. Washington does not challenge that ruling in its cross appeal.
As described in Shepaug River, Connecticut, A Wild and Scenic River Study, H.R. Doc. No. 96-199, Pt. 7 (1979), the Shepaug River originates in the town of Cornwall. Id., p. 18. There are two branches, east and west. “Both branches flow generally southward before joining to form the border between Warren and Litchfield. The East Branch can best be characterized as a small stream with many swampy areas along its course. . . . Almost half the length of the Shepaug’s West Branch is dominated by the 337 acre Cairns Reservoir, which augments the Shepaug Reservoir’s storage immediately downstream. The West Branch watershed is free from development and almost totally forested. As the East and West Branches join to form the 96 acre Shepaug Reservoir . . . the setting is one of tranquil beauty. . . . Below the 50 foot high dam which creates the Shepaug Reservoir is a 1/4 mile long pond. It is not until the Shepaug’s waters pass this point that they flow in such a manner that meets the free-flowing criterion of the Wild and Scenic Rivers Act. . . . The river [referred to as the West Branch of the Shepaug] continues southward . . . and reaches its confluence with the Bantam River. . . . The Bantam River is the Shepaug’s main tributary. . . . Joined now by the Bantam, the Shepaug’s main stem continues southward through a narrow, well-defined valley. . . . For three miles, these hillsides are blanketed with hemlocks and hardwoods, and nearly half
The area primarily affected by Waterbury’s operation of the Shepaug dam is an approximately three mile stretch between the dam and the confluence with the Bantam River. This stretch is known as the west branch of the Shepaug River. This action, however, is concerned with the level of flow throughout the length of the Shepaug River.
The 1921 contract between Washington and Waterbury provided in relevant part: “1. The Town of Washington hereby agrees to withdraw, so far as it is able, the further consideration by the present General Assembly of said House Bill No. 120 and agrees that the same may be adversely reported by the Committee on Cities and Boroughs to which said bill is now referred.
“2. The City of Waterbury agrees that in the event it shall erect a dam on the West Branch of the Shepaug River . . . for the purpose of creating a
“3. And the City of Waterbury further agrees that it will not divert water from the West Branch of the Shepaug River at any time when the distributing reservoirs into which the city aqueduct shall convey such water so diverted are full and overflowing.
“4. And the City of Waterbury further agrees that it will only divert such water to the extent that may be required to supply the actual needs of the customers of said City and to maintain the storage in its potable water supply reservoirs. . . .”
The abbreviation mgd, which stands for million gallons per day, is used in this opinion.
Waterbury asserted twelve special defenses to either some or all of the counts of the defendants’ counterclaim. Those that are pertinent to this appeal will be discussed when addressing that issue.
The trial court ordered the same injunctive relief for Waterbury’s CEPA, contract and riparian rights violations. The ordered relief was as follows:
“1. The city of Waterbury, its agents, servants and employees, are hereby permanently enjoined from operating the city’s water supply system and
May: 34.3 mgd
June: 13.8 mgd
July: 7.6 mgd
August: 6.5 mgd
September: 6.1 mgd
October: 9.8 mgd
“2. Between the date of this order and the completion of alterations necessary to produce the flow rates specified above, the city shall operate the existing eight inch discharge pipe from the Shepaug dam at a maximum rate of discharge. Alterations to achieve the flow required at paragraph 1 shall be commenced expeditiously and shall be completed by May 1, 2002.
“3. The releases required by paragraphs 1 and/or 2 above may be reduced or suspended in the event of a declaration of a water supply emergency pursuant to [General Statutes] § 22a-378 or § 25-32b, only to the extent necessary to comply with any conditions imposed under the declaration issued under such statutory provisions.
“4. The city of Waterbury may temporarily reduce the releases required by paragraphs 1 and/or 2 above for the purpose and only during the time actually necessary to make safety repairs or modifications approved by the commissioner of environmental protection, including the modifications necessary to achieve the releases ordered above. Such reductions shall not be greater than is necessary to complete such projects.
“5. The city of Waterbury shall not divert water from the Shepaug watershed at any time when the Pitch Reservoir and also either the Morris Reservoir or the Wigwam Reservoir is full and either overflowing or discharging water through a pipe or by other means other than discharge to the water treatment plant of water to be supplied to customers for their water consumption needs.
“6. The city of Waterbury shall file the following with the appropriate regulatory authorities within ninety (90) days of the issuance of this order:
“A. Ail applications necessary to alter the Shepaug Dam and other structures to achieve the release rates and comply with the other orders set forth above;
“B. An application to revise its water supply plan to reflect revised methods of operation and revised drought triggers and other changes necessary to comply with the release rates and other orders set forth above.
“The city of Waterbury shall immediately upon filing supply each defendant with a copy of each application filed.
“7. The city of Waterbury shall make its best efforts to contract with the United States Geological Survey to install and monitor a stream gauge at a location at or downstream from Peter’s Weir and upstream from the confluence of the Shepaug River with the Bantam River. If no such stream gauge
Waterbury also contends that the remedy imposed by the trial court for its CEPA violation constituted a taking of its vested rights. More specifically, Waterbury argues that No. 252 of the 1893 Special Acts authorized Waterbury’s present conduct, and the trial court’s ordered remedy unconstitutionally infringes on Waterbury’s rights. According to Waterbury, ordering it to discharge millions of gallons of water daily necessarily strips it of its legislatively granted rights. Because we are remanding the CEPA claim to the trial court with direction to impose no greater relief than would be
General Statutes § 22a-16 provides: “The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state.”
See footnote 10 of this opinion.
General Statutes § 22a-20 provides: “Sections 22a-14 to 22a-20, inclusive, shall be supplementary to existing administrative and regulatory procedures provided by law and in any action maintained under said sections, the court may remand the parties to such procedures. Nothing in this section shall prevent the granting of interim equitable relief where required and for so long as is necessary to protect the rights recognized herein. Any person entitled to maintain an action under said sections may intervene as a party in all such procedures. Nothing herein shall prevent the maintenance of an action, as provided in said sections, to protect the rights recognized herein, where existing administrative and regulatory procedures are found by the court to be inadequate for the protection of the rights. At the initiation of
Waterbury also argued to the trial court that: (1) the 1921 contract with Washington, in which Waterbury promised to maintain a flow in the west branch of the Shepaug River of at least 1.5 mgd, constituted a waiver by Washington to any CEPA claim where the flow was above this level; (2) because Waterbury had properly registered its diversion of water from the Shepaug River under the Connecticut Water Diversion Policy Act (diversion act); General Statutes § 22a-365 et seq.; this diversion was exempt from any further scrutiny; (3) pursuant to General Statutes § 25-32 (a), the department of public health, which has jurisdiction over all water supply plans, has an opportunity to review the defendants’ CEPA claim and thus provides an adequate administrative procedure under § 22a-20; (4) the statute of limitations on the CEPA claim had run; and (5) the defendants’ claim is barred by the doctrine of laches. The trial court rejected these claims and Waterbury does not reassert them on appeal.
General Statutes § 26-141a provides: “Whenever any dam or other structure is maintained in this state which impounds, or diverts, the waters of a river or stream which is stocked with fish by the Commissioner of Environmental Protection, or which dam or other structure affects the flow of water in such a stocked river or stream, the commissioner may promulgate regulations setting forth standards concerning the flow of such water in accordance with section 26-141b.”
General Statutes § 26-141b provides: “The Commissioner of Environmental Protection shall, on or before July 1, 1973, and after consultation and cooperation with the Department of Public Health, the Department of Public Utility Control and any other agency, board or commission of the state with which said commissioner shall deem it advisable to consult and after recognizing and providing for the needs and requirements of public health, flood control, industry, public utilities and water supply, and further recognizing and providing for stream and river ecology, the requirements of aquatic life, natural wildlife and public recreation, and after considering the natural flow of water into an impoundment or diversion, and being reasonably consistent therewith, and also after thirty days’ notice in the Connecticut Law Journal and after thirty days’ notice sent by certified mail to all persons, firms and corporations known to have a direct interest, hold a public hearing and, not earlier than thirty days thereafter, shall promulgate regulations establishing instantaneous minimum flow standards and regulations for all stocked river and stream systems. Such instantaneous minimum flow standards and regulations shall: (1) Apply to all river and stream systems within this state which the commissioner finds are reasonably necessary to keep a sufficient flow of water to protect and safely maintain the fish placed therein by him pursuant to his stocking program; (2) preserve and protect the natural aquatic life, including anadromous fish, contained within such
General Statutes § 26-141c provides: “After the promulgation of the aforesaid minimum flow standards, no person, firm or corporation shall maintain any dam or structure impounding or diverting water within this state except in accordance with such standards and regulations as established by said commissioner. If the commissioner finds that any person, firm or corporation is violating such minimum flow standards, the commissioner shall issue an order to such person, firm or corporation to comply with his regulations. The order shall include a time schedule for the accomplishment of the necessary steps leading to compliance. If such person, firm or corporation fails thereafter to comply with the standards and regulations concerning minimum flow of water, the commissioner is empowered to request the Attorney General to bring an action in the Superior Court to enjoin such person, firm or corporation from restricting the flow of such water in accordance with such standards and regulations.”
Moreover, the cases relied upon by the defendants for the proposition that Waterbury should be estopped from arguing that the trial court lacks subject matter jurisdiction, after expressly inviting the court to hear the issue, namely, Suffield, Bank v. Berman, 228 Conn. 766, 639 A.2d 1033 (1994), and Draper v. Draper, 40 Conn. App. 570, 672 A.2d 522 (1996), are inapposite because the claims in those cases did not implicate the subject matter jurisdiction of the court.
General Statutes § 22a-18 provides: “(a) The court may grant temporary and permanent equitable relief, or may impose such conditions on the defendant as are required to protect the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction.
“(b) If administrative, licensing or other such proceedings are required
“(c) If the agency’s consideration has not been adequate, and notwithstanding that the agency’s decision is supported by competent material and substantial evidence on the whole record, the court shall acjjudicate the impact of the defendant’s conduct on the public trust in the air, water or other natural resources of the state in accordance with sections 22a-14 to 22a-20, inclusive.
“(d) Where, as to any administrative, licensing or other proceeding, judicial review thereof is available, the court originally taking jurisdiction shall maintain jurisdiction for purposes of judicial review.
“(e) The court may award any person, partnership, corporation, association, organization or other legal entity which maintains an action under section 22a-16 or intervenes as a party in an action for judicial review under section 22a-19, and obtains declaratory or equitable relief against the defendant, its costs, including reasonable costs for witnesses, and a reasonable attorney’s fee.”
The water resources commission became part of the department when it was created in 1971.
General Statutes § 22a-20 provides: “Sections 22a-14 to 22a-20, inclusive, shall be supplementary to existing administrative and regulatory procedures provided by law and in any action maintained under said sections, the court may remand the parties to such procedures. Nothing in this section shall prevent the granting of interim equitable relief where required and for so long as is necessary to protect the rights recognized herein. Any person entitled to maintain an action under said sections may intervene as a party in all such procedures. Nothing herein shall prevent the maintenance of an action, as provided in said sections, to protect the rights recognized herein, where existing administrative and regulatory procedures are found by the court to be inadequate for the protection of the rights. At the initiation of any person entitled to maintain an action under said sections, such procedures shall be renewable in a court of competent jurisdiction to the extent necessary to protect the rights recognized herein. In any judicial review the court shall be bound by the provisions, standards and procedures of said sections and may order that additional evidence be taken with respect to the environmental issues involved.”
See footnote 11 of this opinion.
General Statutes § 22a-19 provides: “(a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.
“(b) In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.”
In Middletown v. Hartford Electric Light Co., supra, 192 Conn. 600, although this court rejected, for lack of standing, the plaintiffs’ § 22a-16 claims involving the defendants’ failure to obtain several statutorily mandated permits, we concluded that the plaintiffs did have standing to bring the claim that “burning of PCB contaminated mineral oil constituted a violation of [CEPA] . . . .” The claim subsequently was rejected, on its merits, on factual insufficiency grounds. Id., 601.
For example, the plaintiffs had claimed that the defendants were required to obtain a PCB disposal permit under General Statutes § 22a-467, which provides in relevant part: “No person shall dispose of the compound PCB or any item, product or material containing the compound PCB except in accordance with a permit issued pursuant to section 22a-208a, 22a-430 or 22a-454. ...” These three sections lay out detailed requirements and procedures for obtaining permits. General Statutes § 22a-469 provides that “[a]ny person who or municipality which violates any provisions of sections 22a-463 to 22a-469, inclusive, shall be subject to the penalties provided for in section 22a-438.” General Statutes § 22a-438 provides in relevant part: “(a) Any person who or municipality which violates any provision of this chapter, or section 22a-6 or 22a-7 shall be assessed a civil penalty not to exceed twenty-five thousand dollars . . . .” (Emphasis added.) General Statutes § 22a-6 (a) (3) permits the commissioner of the department to “initiate and receive complaints as to any actual or suspected violation of any statute, regulation, permit or order administered, adopted or issued by him. . . .” Thus, in the above example, if the plaintiffs believed that the defendants had failed to comply with the requirements of § 22a-467, they would have been required to bring a complaint before the department and give it the opportunity to resolve such a claim.
Unlike in Fish II, however, in Middletown v. Hartford Electric Light Co., supra, 192 Conn. 600, we permitted a claim under § 22a-16 that burning of PCBs violated CEPA. See footnote 22 of this opinion. Although we did not elaborate on our reasons for upholding the plaintiffs’ standing on this count, it is likely that, unlike in Fish II, there was no “appropriate administrative body”; id., 597; before which to bring this claim. In Fish II, supra, 254 Conn. 33, the permitting claims raised by the plaintiffs were governed by § 22a-430.
Recently, in Nizzardo v. State Traffic Commission, 259 Conn. 131, 148, 788 A.2d 1158 (2002), this court reaffirmed the holdings of Connecticut Fund for the Environment, Inc. v. Stamford, supra, 192 Conn. 247, and Middletown v. Hartford Electric Light Co., supra, 192 Conn. 591. In Nizzardo v. State Traffic Commission, supra, 148, however, we held that § 22a-19 permitted intervention in an administrative proceeding only to the extent that the particular environmental concerns are within the subject matter jurisdiction of the administrative agency. This case, and thus our reasoning regarding the exhaustion doctrine, does not involve an intervention under CEPA.
The defendants claimed an impairment of flow only during the summer months.
To determine the natural flow of water down the Shepaug River, the parties presented various models of watershed productivity, all of which, as the trial court described, involved “taking measurements of flow from long-duration stream gauges at roughly similar rivers in the same general area, then performing mathematical analyses to estimate the flow of the upper portion of the west, branch of the Shepaug, making adjustments to reflect differences in the size of the watershed and other factors. . . . The favored methodology is to perform the analysis using a gauged stream that is as closely similar, with regard to rainfall, climate, geology, and terrain, as possible to the stream for which a flow rate is being modeled. In choosing a surrogate river from which to model, it is a good practice to consider whether the gauged stream is itself affected by dams and diversions which distort its natural flow.” The method selected by the trial court is known as watershed ratio transform. Although we affirm the trial court’s conclusion that the Shepaug River was impaired for purposes of CEPA, we do not suggest that trial courts must employ the watershed ratio transform method as the only method by which to determine the natural flow of a watercourse.
Thus, we reject Waterbury’s invitation to adopt a four part test created by the Michigan Court of Appeals in Portage v. Kalamazoo County Road Commissioner, 136 Mich. App. 276, 282, 355 N.W.2d 913 (1984), appeal denied, 422 Mich. 883 (1985), to determine whether the Shepaug River is impaired. The four Portage factors are: “(1) whether the natural resource involved is rare, unique, endangered or has historical significance; (2) whether the resource is easily replaceable (for example, by replanting trees or restocking fish); (3) whether the proposed action will have significant consequential effect on other natural resources (for example, whether wildlife will be lost if its habitat is impaired or destroyed); and (4) whether the direct or consequential impact on animals or vegetation will affect a critical
General Statutes § 22a-17 provides: “(a) When the plaintiff in any such action has made a prima facie showing that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute, impair or destroy the public trust in the air, water or other natural resources of the state, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also prove, by way of an affirmative defense, that, considering all relevant surrounding circumstances and factors, there is no feasible and prudent alternative to the defendant’s conduct and that such conduct is consistent with the reasonable requirements of the public health, safety and welfare. Except as to the aforesaid affirmative defense, nothing in this section shall be construed to affect the principles of burden of proof and weight of the evidence generally applicable in civil actions.
“(b) The court before which such action is brought may appoint a master or referee, who shall be a disinterested person and technically qualified, to take testimony and make a report to the court in the action. The costs of such appointment may be apportioned to the parties if the interests of justice require.”
Although Waterbury argues that Manchester Environmental Coalition only defined the term “unreasonable” with regard to pollution, and not impairment, the language of the statute strongly suggests that the term “unreasonable” was intended to modify not only the word “pollute,” but also the words “impair” and “destroy” as well. Furthermore, there is no indication in the text, or from the legislative history, that the term “unreasonable” was intended to have a different meaning when applied to pollution from its meaning when applied to impairment of a natural resource.
Following this statement, Wade also recommended that the phrase “acting alone or in combination with others” bo added to what is now §§ 22a-16 and 22a-17 to overcome “the problem of the fact that someone, acting alone does not pollute unreasonably, but acting with others does.” (Emphasis added.) Conn. Joint Standing Committee Hearings, supra, p. 163. This further reinforces the notion that the legislature did not think of unreasonable pollution as being simply a quantity more than de minimis.
The defendants also point to Gardiner v. Conservation Commission, 222 Conn. 98, 608 A.2d 672 (1992), as support for the trial court’s interpretation of unreasonable impairment. In Gardiner, we stated: “Even minimal environmental harm is to be avoided if, ‘considering all relevant surrounding
For example, General Statutes §§ 26-141a through 26-141c, regulating the minimum stream flow for stocked rivers, was enacted during the 1971 legislative session, when CEPA was enacted. Furthermore, since the passage of CEPA in 1971, the legislature has enacted numerous environmental statutes that purport to regulate certain activities and set various compliance standards. See, e.g., General Statutes §§ 22a-36 through 22a-45 (Inland Wetlands and Watercourses Act, initially enacted in 1972); General Statutes §§ 22a-67 through 22a-76 (establishing state policy on noise pollution control, initially enacted in 1974); General Statutes §§ 22a-90 through 22a-112 (Coastal Management Act, initially enacted in 1978); General Statutes §§ 22a-114 through 22a-134q (state policy on handling of hazardous waste, initially enacted in 1980); General Statutes §§ 22a-163 through 22a-165g (creation of low-level radioactive waste facility, initially enacted in 1987); General Statutes §§ 22a-227 through 22a-229 (municipal solid waste management plan, initially enacted in 1985); General Statutes §§ 22a-257 through 22a-265 (Connecticut Solid Waste Management Services Act, initially enacted in 1973); General Statutes §§ 22a-354g through 22a-354bb (establishment of aquifer protection areas, initially enacted in 1989); General Statutes §§ 22a-365 through 22a-378 (Water Diversion Policy Act, initially enacted in 1982); General Statutes §§ 23-65f through 23-65qv (forest practices, initially enacted in 1986).
In its original memorandum of decision, the trial court had found that “[t]he evidence does not establish that the west branch of the Shepaug River is a stream which the commissioner stocks with fish, though a private association of fishermen, the Washington Rod and Gun Club, does so. The cited statute and effectuating regulations thus have not been shown to apply.” (Emphasis added.)
On remand, the defendants are free to argue that the Shepaug River is not a stocked watercourse based, not on the location of the stocking but, as will be explained shortly, on the ground that there was no stocking anywhere on the Shepaug River. We note, however, that after the trial court released its original memorandum of decision; see footnote 34 of this opinion; Waterbury filed a motion to reopen the record and for permission to adduce additional evidence, namely, a certified copy of the department’s Connecticut Fish Distribution Report, which listed Roxbury as a stocking point in 1999. The trial court denied the motion. If, at a new trial, the court admits this document into evidence, it appears unlikely that the argument that the Shepaug River is not stocked will be successful.
Section 26-141a-4 (a) of the Regulations of Connecticut State Agencies provides in relevant part: “In determining whether to grant an exemption or variance under this section, upon receipt of a petition from the operator of an impoundment or diversion, the Commissioner shall include, but is not limited to, consideration of whether operation of the structure will:
“(1) Prevent the maintenance of viable pools, channels, or other water basins, or allow their undue depletion by normal evaporation and aquifer absorption;
“(2) Reduce oxygen content below minimal levels, cause stagnation, or inhibit reproductive cycles (where that potential exists);
“(3) Prevent the preservation, protection and safe maintenance of the river and stream stocking program, the natural aquatic life contained in such waters (including anadromous fish), and the natural or stocked wildlife dependent upon the flow of such water, and the availability of such water for public recreational uses; or
“(4) Meet the needs and requirements for public health, flood control,
A third member of the Connecticut Fly Fishermen’s Association, Edward Poriss, commented: “There are many instances in this state where streams are dried up ... by closed impoundments or diversions of water during low-flow months. In many of these instances, more water could be released down stream without harming the situation for which water is impounded or diverted. This release of water benefits the entire ecology downstream, all the wildlife dependent upon a flow of water . . . and promotes an improved health situation. ... At first glance, it may seem that this bill emphasizes water flow for the benefit of stocked fish. This purely practical way of underlining the fact that it makes sense to protect the investment of the taxpayers of the state. . . . We . . . recognize the primary needs of the water companies, small and large, to supply clean water to their customers, and to insure an adequate supply. . . . This bill takes these needs into consideration and does not ask for an unreasonable release of water. . . . Much information on the flow of these rivers and streams is already available, and there are acceptable scientific methods for calculating low flow needs, and thereby, safe amounts to release. This bill asks the experts in the Water Resources Commission to decide these amounts after taking into consideration all the possible uses for this water. . . . This is not intended as a restrictive or punitive bill at all. This is much more a bill to establish a sensible public policy concerning streams and rivers for the benefit of the entire environment.” (Emphasis in original.) Conn. Joint Standing Committee Hearings, supra, p. 246.
In addition to members of the Connecticut Fly Fisherman’s Association, several other citizens spoke in favor of the proposed legislation. “Our ecology at present time is a very important issue, this is part of this whole program which will support and provide adequate supply of water for the aquatic life in the rivers and streams feeding them. It will also provide for an adequate supply of water for the utilities.” Id., pp. 233-34, remarks of Representative Earl T. Holdsworth. “The important principle is that we are planning for the future and water should be and must be considered for all valid uses, and one use should not unnecessarily be tended to the detriment of another. There is no longer any logic in allowing future water supply and power developments to operate so as to divert water for consumptive use from 1he natural water course to the limit that the stream can no longer sustain aquatic life or support water shed recreation; or to allow the regulation of flows so as to periodically leave the stream inhospitable for the life or use which it normally supports.” Id., p. 264, remarks of Alfred Hunyadi, assistant director of the state board of fish.
The trial court found that: “The defendants established . . . that the effect of reducing flow to the extent that [Waterbury] does during the summer months reduces the amount of wet stream bed, the habitat for the insects that are part of the river’s ecology. They also proved that [Waterbury’s] diversion of water reduces the aesthetic appeal of the river, since large areas are left dry and parched-looking more frequently than would be their natural state.” Although insect habitat is not specifically addressed in the minimum flow statute, it is clear that the statute was intended to protect the ecology of the river, which includes insects. As for aesthetics, this factor could have been addressed as part of ensuring sufficient water for public recreation, which could include sighl seeing. Even if these two factors were not addressed, however, this does not prevent the legislature from giving specific substantive shape to the general directive of CEPA, as was done here, albeit the legislature did not specifically address every conceivable environmental concern.
See, e.g., 14 H.R. Proc., supra, p. 745, remarks of Representative Collins (“In 1967 we passed a [very] significant water pollution bill. We did the same thing with the clean air bill in 1969. If those bills and the programs implementing those bills had been properly and thoroughly carried out by the state agencies ... it might just be that a bill of this nature would not be necessary.”); 14 S. Proc., supra, p. 1090, remarks of Senator Stanley J. Pac ('T am convinced that our ability to clean up the air in our environment,
Thomas Morrissey, director of the planning and standards division in the water management bureau of the department, testified as follows:
“Q. Okay. Are you aware of any ecological basis for the minimum stream flow standards?
“A. No, I’m not. As a matter of fact, there’s not... I don’t believe there’s an ecological basis to them at all.”
Richard Jacobson, supervising fisheries biologist in the fisheries division of the bureau of natural resources of the department, testified as follows:
“Q. Okay. Mr. Rooney was talking with you yesterday about the minimum stream flow policy or regulation for the state of Connecticut. I wanted to ask you, are you aware of what—whether there is any scientific or ecological foundation for that regulation?
“A. I have not found any information in any of the files at [the department] that I have been able to search to find any ecological justification for those numbers.”
At trial, Waterbury also claimed that the Connecticut Water Diversion Policy Act, General Statutes § 22a-365 et seq. (diversion act), insulated it from any claim under CEPA. The diversion act put into place a system that required a party to obtain a permit from the department in order to divert water. As part of the scheme, any person or municipality that had maintained a diversion prior to or on July 1, 1982, was exempted from the permit process, as long as it properly registered its diversion with the department on or before July 1, 1983. See General Statutes § 22a-368. The trial court found that Waterbury “duly registered its diversion of water from the west branch of the Shepaug River.” The trial court rejected, however, Waterbuiy’s claim that “such registration insulates the diversion that existed in 1983 from further scrutiny by way of a claim of unreasonable impairment of the public trust in a natural resource under CEPA.” The trial court concluded that, because the “[diversion [a]ct contains no provision exempting existing
At trial, Waterbury asserted this claim against all of the defendants. On appeal, however, Waterbury does not challenge the trial court’s ruling with respect to Washington. Thus, the term defendants, as used in part II of this opinion, only refers to Roxbury, the Roxbury Land Trust, Inc., the Shepaug River Association, Inc., and the Steep Rock Association, Inc.
The defendants argue that Waterbury is challenging only the factual basis for the trial court’s decision. Waterbury clearly asserts in its brief, however, that based upon the trial court’s factual determination that “the Shepaug dam [was] an open and visible barrier on the river since 1933,” it was an error, as a matter of law, to conclude that Waterbury had not established the open and visible elements of its prescriptive easement claim.
The diversion act; see footnote 41 of this opinion; was passed in 1982. That act transformed the state into a “regulated riparian” jurisdiction, one implication of which will be discussed later in this opinion.
Neither party addresses, let alone disputes, the position that Connecticut, at least until 1982, recognized the natural flow principles of water rights. Waterbury does assert, however, that Connecticut is currently a regulated riparian state. This claim, however, does not affect our analysis of the defendants’ riparian rights as they existed, at least until 1982.
States that do not follow the natural flow theory of riparian rights follow the reasonable use theory. Under this doctrine “every riparian owner has an equal right to make a reasonable use of the water. A reasonable use is any use that does not inflict substantial harm or unreasonable injury on other riparian owners. Thus a landowner’s right to use water is limited only by the harm he might cause downstream owners.” J. Christman, Water Rights in the Eastern United States (K. Wright ed., 1998) p. 23. This commentator believes that Connecticut now may be a reasonable use jurisdiction. Christman states: “The reasonable use doctrine has replaced the natural flow theory in most jurisdictions, though courts occasionally still speak in ‘natural flow’ language. In [Dimmock v. New London, supra, 157 Conn. 15], for example, the Connecticut Supreme Court reaffirmed the natural flow theory .... Twelve years later the same court adopted the other rule, the reasonable use doctrine, but only in dictum that was not controlling for future cases.” (Emphasis in original.) J. Christman, supra, p. 23. The case referred to was Page Motor Co. v. Baker, 182 Conn. 484, 438 A.2d 739 (1980). Page Motor Co. v. Baker, supra, 487, only addressed the “common enemy doctrine,” however, and how parties may deal with surface water. None of the parties claim that this court, in Page Motor Co., abandoned the natural flow theory and adopted the reasonable use theory. We therefore decline to read Page Motor Co. as doing so.
Although this agreement was only between Washington and Waterbury, because Waterbury has not challenged on appeal the trial court’s riparian rights ruling with respect to Washington, we conclude that Waterbury has made this concession as to all other defendants as well.
The trial court made several findings indicating that Waterbury had altered the operation of its water distribution system. In the trial court’s first memorandum of decision, it stated: “The method of operating [Waterbury’s] water system which gave rise to dissatisfaction, and then to the claims of [the defendants] in this suit, began soon after Waterbury built a water treatment plant in 1988 . . . .” Then, in its memorandum of decision on Waterbury's motion to reargue, the court added: “The evidence established that Waterbury’s impairment of the defendants’ riparian rights was not open and visible until Waterbury made major changes in the way it operated its water supply system in 1988-89, a period less than fifteen years prior to the institution of the defendants’ counterclaim for injunctive relief against impairment of their riparian rights.” This suggests that, beginning in 1988, Waterbury may have exceeded the scope of its previously established easement.
General Statutes § 22a-368 provides: “(a) Any person or municipality maintaining a diversion prior to or on July 1,1982, shall register on or before July 1,1983, with the commissioner on a form prescribed by him the location, capacity, frequency and rate of withdrawals or discharges of said diversion and a description of the water use and water system. Any such diversion which is not so registered may be subject to the permit requirements of sections 22a-365 to 22a-378, inclusive.
“(b) Notwithstanding any other provision of the general statutes or any special act to the contrary, no person or municipality shall, after July 1, 1982, commence to divert water from the waters of the state without first obtaining a permit for such diversion from the commissioner.
“(c) No permit shall be transferred to another person or municipality without the written approval of the commissioner.”
In 1988, Waterbury successfully amended its diversion to allow the sale of additional water to Wolcott. Currently, the department is reviewing two additional applications to expand the Shepaug River diversion, one to supply additional water to Middlebury, and the other to supply yet more water to Wolcott. The trial court, pursuant to § 22a-18, has retained primary jurisdiction over these proceedings.
See J. Dellapenna, Regulated Riparian Model Water Code, supra, § 6R-3-02, p. 240-45 (“[t]his section describes the factors that shall inform any decision by the State Agency regarding whether a proposed use is reasonable”).
General Statutes § 22a-373 provides: “(a) The commissioner shall, within one hundred and twenty days of the close of the hearing, make a decision either granting or denying the application as deemed complete in section
“(b) In malting his decision, the commissioner shall consider all relevant facts and circumstances including but not limited to:
“(1) The effect of the proposed diversion on related needs for public water supply including existing and projected uses, safe yield of reservoir systems and reservoir and groundwater development;
“(2) The effect of the proposed diversion on existing and planned water uses in the area affected such as public water supplies, relative density of private wells, hydropower, flood management, water-based recreation, wetland habitats, waste assimilation and agriculture;
“(3) Compatibility of the proposed diversion with the policies and programs of the state of Connecticut, as adopted or amended, dealing with long-range planning, management, allocation and use of the water resources of the state;
“(4) The relationship of the proposed diversion to economic development and the creaüon of jobs;
“(5) The effect of the proposed diversion on the existing water conditions, with due regard to watershed characterization, groundwater availability potential, evapotranspiration conditions and water quality;
“(6) The effect, including thermal effect, on fish and wildlife as a result of flow reduction, alteration or augmentation caused by the proposed diversion;
“(7) The effect of the proposed diversion on navigation;
“(8) Whether the water to be diverted is necessary and to the extent that it is, whether such water can be derived from other alternatives including but not limited to conservation;
“(9) Consistency of the proposed diversion with action taken by the Attorney General, pursuant to sections 3-126 and 3-127; and
“(10) The interests of all municipalities which would be affected by the proposed diversion.
“(c) In malting a decision on an application, the commissioner shall consider (1) capital expenditures and other resource commitments made prior to July 1, 1982, in connection with a proposed diversion, but such expenditures or commitments shall not be binding in favor of such proposed diversion and (2) proposed diversions recommended in any water supply plan developed pursuant to section 25-32d or coordinated water system plan prepared pursuant to section 25-33h in the same manner as proposed diversions not recommended in any such plan.
“(d) If a decision is not made in the time required pursuant to subsection (a) of this section, the application shall be deemed granted.”
See footnote 6 of this opinion.
Waterbuiy claims that Washington only asked for “ [a] permanent injunction prohibiting further breaches by Waterbury of the May 2, 1921 contract with the town of Washington.” Therefore, Waterbury argues, the trial court was free to fashion appropriate equitable belief based on the equities of the situation. Although in its answer and revised counterclaim Washington asked for a permanent injunction, in its pretrial brief, it requested specific performance of the 1921 agreement. The trial court acknowledged this in its order, stating: “The only remedy that Washington seeks for what the court has found to be a repeated violation of the 1921 contract is an order of specific performance of the terms of the contract.”
Additionally, Waterbury contends that Washington is not entitled to injunctive relief because Washington did not establish that: (1) Waterbury’s actions resulted in irreparable harm; and (2) there was no adequate remedy at law. See Tighe v. Berlin, 259 Conn. 83, 87, 788 A.2d 40 (2002) (“ ‘party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law’ ”). In Washington’s pretrial brief, however, it claimed that it was entitled to specific performance of the 1921 contract because: (1) the contract involved the sale of real property, namely, Washington’s riparian rights in the Shepaug River; and (2) the loss of quality in the Shepaug River could not be valued in monetary terms. Waterbury did not challenge the type of relief sought by Washington in the trial court. In fact, in its closing argument, Waterbury stated that it had raised the defense of laches to the contract claim because Washington “only asked for equitable relief, so laches is the appropriate doctrine . . . .” Because Waterbury failed, before the trial court, to raise the claim that Washington was not entitled to injunctive relief for breach of the 1921 contract, we deem it to be waived. See Practice Book § 60-5 (“[tjhe court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial”); Buckman v. People Express, Inc., 205 Conn. 166, 174, 530 A.2d 596 (1987) (failure of defendant to file motion to strike or request to revise charge fatal to attack on sufficiency of complaint).
See footnote 9 of this opinion.
This relief order also was intended to cure Waterbury’s violation of the other defendants’ riparian rights. The trial court stated: “[T]he other riparian owners [excluding Washington; see footnote 42 of this opinion] are entitled to injunctive relief from [Waterbury’s] violation of their riparian rights that is the same as the relief awarded pursuant to this court’s finding of a violation of CEPA. . . . The court . . . exercises its discretion to curb that diversion only to the extent that it has been found to violate CEPA.” (Citation omitted.)
The trial court’s first order had provided: “[Waterbury], its agents, servants and employees, are hereby permanently enjoined from operating [Waterbury’s] water supply system and from diverting water from the west branch of the Shepaug River through the aqueduct tunnel in a manner that results in a daily flow at Peter’s Weir or other suitable location for a stream gauge above the confluence with the Bantam River of less than the following stream flow in the indicated months:
May: 34.3 mgd
June: 13.8 mgd
July: 7.6 mgd
August: 6.5 mgd
September: 6.1 mgd
October: 9.8 mgd”
Washington filed a motion for clarification, requesting that the trial court “make clear that Waterbury may not divert water from the Shepaug Reservoir when any one of the Pitch, Morris or Wigwam Reservoirs is full and overflowing.” In its ruling on Washington’s motion, the trial court reaffirmed that its order is “limited to a requirement not to divert when either (1) the Pitch and the Wigwam or (2) the Pitch and the Morris are simultaneously full and overflowing.”
