TILCON CONNECTICUT, INC. v. COMMISSIONER OF ENVIRONMENTAL PROTECTION
SC 19203
Supreme Court of Connecticut
July 28, 2015
Argued December 5, 2014—officially released July 28, 2015
Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
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David H. Wrinn, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee-appellant (defendant).
Daniel J. Krisch and Ann M. Catino filed a brief for the Connecticut Business and Industry Association as
Elizabeth C. Barton and Rene A. Ortega filed a brief for the Home Builders and Remodelers Association of Connecticut, Inc., et al. as amici curiae.
EVELEIGH, J. The plaintiff, Tilcon Connecticut, Inc., an earth materials excavation and processing company, petitioned the defendant, the Commissioner of Environmental Protection (commissioner), for a declaratory ruling defining the scope of the authority possessed by the Department of Environmental Protection (department)1 to request certain information from the plaintiff for its various water diversion permit applications pursuant to the Connecticut Water Diversion Policy Act (water diversion act),
To provide some context for the issues in the present case, we begin by setting forth the basic framework of
I
FACTS AND PROCEDURAL HISTORY
The undisputed facts of the present case are set forth in the declaratory ruling issued by the commissioner, which we will supplement, as needed, by the administrative record. The plaintiff owns facilities used for earth materials excavation and processing located on properties in Plainfield, Wallingford, Montville, Griswold, and North Branford. To conduct its excavation activities, the plaintiff has obtained a variety of permits, other than the water diversion permits at issue in the present case, from various federal, state, and local agencies.
In 2003, the plaintiff submitted to the department five individual applications for water diversion permits, one application for each of its five facilities, for the maximum twenty-five year period. Each of the diversions for which the plaintiff sought permits—specifically, two withdrawals of water from wells and eight withdrawals of water from manmade surface basins located at lower elevations on its sites—had already been in existence for several years and, in some instances, decades. The plaintiff sought permits for them at this time in response to the enactment of
In each of its applications, the plaintiff detailed the use and source of the withdrawn water. As for use, the plaintiff classified each permit as one for the diversion of water for consumptive use—as opposed to nonconsumptive use—despite the fact that it used much of the withdrawn water in ‘‘closed loop’’ systems, meaning that the water used would be returned to its original source, with minimal consumption or evaporation of water in the process. Some of the withdrawn water was, however, directly consumed for uses such as dust suppression and was not returned to its source. Each water source was located completely on the plaintiff’s property and was supplied primarily by stormwater and, to some extent, groundwater seepage. The basins and wells were not supplied by water from watercourses, public or private drinking supplies, or recreation areas.
The plaintiff included with its applications information to demonstrate its compliance with various laws. It attached a listing of all federal, state, and local permits already issued or pending for the site or proposed activity. It also provided a description of whether the proposed diversion would provide instantaneous flow or release of surface waters in the natural downstream direction below the diversion and, if so, whether such release was authorized by an NPDES permit. NPDES permits are required pursuant to the federal Clean Water Act (clean water act);
The plaintiff included a variety of other materials in support of its applications, including environmental reports.10 In those reports, the plaintiff generally
Three years after submission of the permit applications, on July 18, 2006, the plaintiff received a letter from the department requesting additional information for all five of the plaintiff’s applications. The department requested comprehensive information about the plaintiff’s excavation activities for the duration of the requested permits, namely, twenty-five years. Specifically, the department requested ‘‘a site plan which details the overall proposed limits of earthwork, including but not limited to, excavation of sand and gravel deposits, construction of roadways, soil stabilization measures and wetland/watercourse and associated buffer areas, at the identified project sites . . . .’’ The department stated that the site plan ‘‘must include . . . [t]he location and extent of inland wetland and watercourses, endangered, threatened and special species habitats; and significant natural communities; [t]he location and extent of buffer areas provided to protect [these resources]; [a]dequate erosion and sedimentation controls . . . for all phases of development; [r]estoration and [e]nhancements of existing ponds, wetlands and watercourses utilized for sand and gravel processing to maximize wetland functions and values; [a]dequate stormwater control measures . . . for all phases of development and [f]inal stabilization measures for the completed site development.’’
In support of its request, the department stated that, ‘‘[s]ince the authorization of the proposed water supply systems will facilitate the continued mining activities and earth product processing at the project sites, [department] staff need[s] the aforementioned site development plans to fully assess the long-term effects of the proposed diversion on inland wetlands and watercourses, fish and wildlife and water quality.’’
The plaintiff did not fully comply with the department’s request. Instead, by way of a letter dated March 28, 2007, the plaintiff expressed its disagreement with the department’s claim that the ‘‘effect of the proposed diversion’’ could extend, geographically and temporally, to the proposed limits of its excavation activities for the next twenty-five years. The plaintiff claimed that the ‘‘effect of the proposed diversion’’ was only those portions of the properties that ‘‘are, or are reasonably expected to be, affected by an actual diversion of water, [which it claimed was] the ‘area of influence’ of such diversion, or in the case of a quarry where the stormwater collection exceeds [100] acres, the downstream
In a letter dated October 21, 2008, which is central to the declaratory ruling that followed, the department claimed that it had jurisdiction and authority over all of the plaintiff’s site activity, which ‘‘includes the withdrawal of water from on-site basins,’’ indicating that the department considered the plaintiff’s activities other than the withdrawals of water for which the plaintiff sought permits—its excavation and earth removal activities—to be properly within the department’s jurisdiction and authority. (Emphasis added.) In the letter, the department asserted that, once the plaintiff’s withdrawals of water triggered the department’s jurisdiction, its ‘‘scope of review when determining whether [the plaintiff’s] application is complete is broad as the [d]epartment is statutorily authorized to review, among other factors, the effects [the plaintiff’s] activity may have on wetlands or wildlife . . . [and] the possible environmental impacts of the diversion activity (which, in this case, would be [the plaintiff’s] activity at all five sites) . . . .’’ The department then requested even more information for all five of the plaintiff’s permit applications so that it could ‘‘cohesively manage and protect our natural resources.’’ The department’s requests focused almost exclusively on various aspects of the plaintiff’s excavation activities, with the geographic scope of its requests extending to the ‘‘existing limits of the processing and excavation areas and any areas proposed to be disturbed for the duration of the permit.’’15 In addition to the vast amount of information the department requested about the plaintiff’s excavation activities on all five of the properties, the department also requested information specific to the plaintiff’s North Branford facility on two matters. First, the department requested ‘‘[a] wetland[s] mitigation plan to offset the approximately [twelve] acres of inland wetlands that have been destroyed by the post-1990 expansion of the quarry’’ pursuant to permits issued by the North Branford Inland Wetlands and Watercourses Agency (North Branford wetlands agency) in 1974 and 1984. Second, the department requested information about
Instead of submitting the requested information, in 2009, the plaintiff filed a petition for a declaratory ruling to address the scope of the department’s authority to request information for the plaintiff’s water diversion permit applications.18 The plaintiff sought a ruling by the commissioner as to three questions: (1) as to all five facilities, ‘‘[w]hen processing an application for a water diversion permit, does the [department] have jurisdiction and authority19 to consider all potential environmental resources and issues to the entire site on which the diversion is located, even if those other resources and issues are hydraulically unrelated to the diversion or are committed by statute or regulation to other [department] bureaus or regulatory agencies?’’; (footnote added); (2) as to North Branford property, ‘‘[w]hen an applicant for a water diversion permit already has obtained a local wetlands permit for activities that are located on the diversion site but are hydraulically unrelated to the diversion, may the [department], processing a diversion permit application, demand information regarding such wetlands and regulated activities and regulate those activities again?’’; and (3) as to North Branford property, ‘‘[m]ay the [department] decline to process or delay processing an NPDES permit renewal on the ground that the applicant has not supplied to the [department] requested additional information regarding a pending water diversion permit application?’’ The plaintiff and the department stipulated to the facts and exhibits to be considered by the commissioner.
In the declaratory ruling, the commissioner began by concluding that the first question in the petition had not been framed properly and decided instead to use the department’s October 21, 2008 letter as a reference point for her ruling, though she did not specifically reformulate the petition question. The commissioner then answered all the questions presented by the petition in the affirmative, interpreting the water diversion act as authorizing all of the department’s requests for information in the letter. As to the first question about the information requested for all five facilities, the commissioner explained that the water diversion act conferred broad authority on the department to request information about activities beyond the specific withdrawals for which the plaintiff sought diversion permits because the plaintiff’s excavation activities, themselves, might be diversions. The commissioner also explained
The commissioner resolved the second petition question—whether the department could properly request a mitigation plan for wetlands alterations authorized by prior municipal wetlands permits for the North Branford property—by concluding that the department exercises overlapping jurisdiction with the North Branford wetlands agency and that, therefore, the department could properly request a wetlands mitigation plan. The commissioner reasoned that the water diversion act grants the department ‘‘separate and broad authority to review the wetlands impacts of diversion activities,’’ as evidenced by the legislature’s failure to include activities already permitted by local wetlands commissions among the exemptions from the water diversion act.
Finally, as to the third question, the commissioner concluded that, under § 22a-430-4 (d) (3) of the Regulations of Connecticut State Agencies, a regulation promulgated by the department in implementing the clean water act, the department could delay processing a completed NPDES permit application when a related permit application is incomplete or may be denied. The commissioner reasoned that, because the water withdrawn from the North Branford quarry pursuant to the water diversion permit would be discharged pursuant to the NPDES permit, the two permit applications were related for purposes of the regulation.
The plaintiff appealed from the declaratory ruling to the trial court pursuant to
We conclude that, in the context of the plaintiff’s applications, the water diversion act does not authorize the department’s attempts to seek information about, and thereby effectively regulate, the plaintiff’s excavation activities as diversions separate and apart from the withdrawals for which the plaintiff seeks permits, nor does it authorize the department’s attempts to regulate the plaintiff’s excavation activities as an ‘‘effect’’ of the proposed diversions. We also agree with the plaintiff that the water diversion act does not authorize the department to request a wetlands mitigation plan for the alteration of wetlands authorized by prior municipal wetlands permits and that the department may not delay processing the plaintiff’s NPDES permit application due to the pending water diversion permit application. We will address each claim in turn, beginning with the threshold issue of subject matter jurisdiction.
II
FINAL JUDGMENT
As a threshold issue of appellate jurisdiction, we discuss whether the trial court’s judgment is an appealable final judgment in light of its remand order for factual findings as to the first question in the declaratory ruling. See State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983) (‘‘[b]ecause our jurisdiction over appeals . . . is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim’’). Both parties contend that the decision of the trial court constitutes a final judgment for the purpose of appeal, and we agree.
The appeal in the present case is governed by the
In the present case, irrespective of whether the remand would fall within
STANDARD OF REVIEW
We next set forth the standard of review. ‘‘Administrative agencies . . . are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon . . . the statutes vesting them with power and they cannot confer jurisdiction upon themselves. . . . We have recognized that [i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. . . . It cannot modify, abridge or otherwise change the statutory provisions . . . under which it acquires authority unless the statutes expressly grant it that power.’’ (Internal quotation marks omitted.) Celentano v. Rocque, 282 Conn. 645, 654, 923 A.2d 709 (2007). We must therefore interpret the statutory provisions under which the department acquires its authority.
The scope of the department’s authority under the water diversion act presents a question of law. ‘‘Cases that present pure questions of law . . . invoke a broader standard of review than is . . . involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.’’ (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010). ‘‘Although the interpretation of statutes is ultimately a question of law . . . it is well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.’’ (Internal quotation marks omitted.) Celentano v. Rocque, supra, 282 Conn. 652.
‘‘We have determined [however] that the traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency’s time-tested interpretation . . . . [A]n agency’s interpretation of a statute is [time-tested] when the agency’s interpretation has been formally articulated and applied for an extended period of time, and that interpretation is reasonable.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Hartford v. Hartford Municipal Employees Assn., 259 Conn. 251, 261–62, 788 A.2d 60 (2002); see also Sarrazin v. Coastal, Inc., 311 Conn. 581, 611 n.20, 89 A.3d 841 (2014) (‘‘[a] consideration of whether an interpretation is time-tested takes into account both the length of time since it first was articulated and the number of formal decisions applying that interpretation’’).
The parties do not dispute that the department’s interpretation of the water diversion act has never been subjected to judicial scrutiny. The commissioner does claim, however, that the department’s interpretation
The department’s interpretations of the water diversion act in the record do not amount to a time-tested interpretation because they have been neither formally articulated nor adopted pursuant to formal rule-making or adjudicatory procedures; they include private correspondence and internal documents. Accordingly, we do not accord them any deference. See Sarrazin v. Coastal, Inc., supra, 311 Conn. 610–11 (‘‘[t]he requirements that an interpretation be ‘formally articulated and applied for an extended period of time’ provide a proper basis for deference because, like judicial review, they ensure that the interpretation is articulated through procedures that allow for robust adversarial testing and in a manner that has general applicability’’).
Because we need not accord the department any deference in construction of the statutory provisions at issue, our review is plenary. Celentano v. Rocque, supra, 282 Conn. 654. ‘‘The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to determine [the] meaning [of the statutory language] . . . [we] first . . . consider the text of the statute itself and its relationship to other statutes.’’ (Internal quotation marks omitted.) Sams v. Dept. of Environmental Protection, 308 Conn. 359, 377–78, 63 A.3d 953 (2013); see also
IV
SCOPE OF THE DEPARTMENT’S AUTHORITY UNDER THE WATER DIVERSION ACT
Turning to the merits of the plaintiff’s appeal, the plaintiff first claims that the commissioner and the trial court interpreted the department’s authority under the water diversion act too broadly. In essence, the plaintiff claims that the department may not request information concerning, or regulate, the plaintiff’s excavation activities in the context of its applications for permits for withdrawals of water. The commissioner responds that this court should affirm the interpretations of the water diversion act endorsed by the trial court that would allow it to do so. We discuss, first, whether we must reframe the plaintiff’s first petition question, and, thereafter, our construction of the water diversion act.
A
Reframing the Question Presented
The question as originally drafted by the plaintiff asks whether the department has jurisdiction and authority ‘‘to consider all potential environmental resources and issues to the entire site on which the diversion is located, even if those other resources and issues are hydraulically unrelated to the diversion or are committed by statute or regulation to other [department] bureaus or regulatory agencies.’’ The commissioner declined to answer the question as framed and instead used the department’s October 21, 2008 letter as a reference point for the declaratory ruling, but did not explicitly formulate a substitute question. The plaintiff generally asserts that any deviation from the question as worded perpetuates the mischaracterization of the issue before the court. We conclude that, for us to fairly address the parties’ claims, we must reframe the question presented.
The first question presented in the plaintiff’s petition for a declaratory ruling, as drafted by the plaintiff, is inaccurate because we cannot answer it without: (1) assuming that the department has, through its actions, attempted to consider every potential environmental resource and issue on the literal entirety of each of the plaintiff’s sites; or (2) assuming the question’s own conclusion because the question presupposes that all information requested by the department is, in fact, ‘‘hydraulically unrelated’’ to the proposed diversion, a term that itself is subject to various meanings. The commissioner, the trial court, and even the plaintiff have not attempted to answer the question as drafted because it does not fully reference the facts and circumstances of the present case, nor could its answer properly address the evolving arguments of the parties to these proceedings.23
B
Construction of the Water Diversion Act
We now turn to the merits of the plaintiff’s first petition question: whether, in the context of the permit review process for the plaintiff’s applications for withdrawals of water, the water diversion act authorizes the department to request information concerning and, in essence, regulate the plaintiff’s excavation activities and the environmental effects of those activities. The plaintiff contends that the department is limited to requesting information relating only to the diversions for which permits are sought and the effects of those specific diversions on water resources or matters related thereto, as set forth by statute, within the area of influence of the proposed diversions. The commissioner asserts that the plaintiff’s submission of the applications gave the department jurisdiction and authority over the excavation activities either as diversions themselves or as effects of the proposed diversions. Although we do not wholly endorse either party’s construction, we conclude that this question must be answered in
We begin with a discussion of the regulatory scheme. We then explain why this scheme does not authorize the department to regulate the plaintiff’s excavation activities either as: (1) diversions distinct from those for which the plaintiff has sought permits; or (2) an ‘‘effect’’ of the plaintiff’s proposed withdrawals of water because such excavation activities are facilitated and enabled by the plaintiff’s use of the withdrawn water. We then explain why the plaintiff’s ‘‘area of influence’’ metric does not define the limits of the department’s authority and, thereafter, discuss the department’s reliance on this court’s decision in Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 977 A.2d 127 (2009). Finally, we acknowledge the limits of this opinion.
As we explained previously in this opinion, the purpose of the water diversion act is to preserve water, ‘‘a precious, finite and invaluable resource upon which there is an ever increasing demand for present, new and competing uses . . . .’’
The water diversion act’s definition of ‘‘[d]iversion’’ is undeniably broad: ‘‘any activity which causes, allows or results in the withdrawal from or the alteration, modification or diminution of the instantaneous flow of the waters of the state . . . .’’ (Emphasis added.)
The legislature has exempted, however, certain diversions from the requirements of the water diversion act. See
In managing the nonexempt diversions that require the department’s oversight, the water diversion act requires the reporting to the department of operating data about the water usage of each diversion so that the department may determine, before issuing new diversion permits in any particular area, whether additional diversions will overburden the water resources in that area.25 Indeed, before establishing the duration of each diversion permit, the department must consider ‘‘the extent to which the waters affected by such permit have already been allocated; [and] the uses to which such previously-allocated waters are put, including non-consumptive uses . . . .’’ Regs., Conn. State Agencies § 22a-377 (c)-2 (h) (1) (A) and (B).26
Two statutory provisions directly bear on the information that the department may request to decide whether to grant a permit. First,
The water diversion act provides the department with a variety of other powers to implement its provisions, including enforcement powers. If any person or municipality conducts activities that constitute a diversion without a permit, the legislature empowered the department to ‘‘request the Attorney General to bring an action . . . to enjoin [any person or municipality violating the water diversion act] from continuing such violation’’ and set forth civil penalties for such violations.
Having set forth the parameters of the water diversion act as it bears on the issues before us, we now address the question of whether the department exceeded its authority in requesting information about the plaintiff’s excavation activities in the October 21, 2008 letter.
The commissioner first claims that the broad definitions of ‘‘diversion,’’ ‘‘waters,’’ and ‘‘instantaneous flow’’ in
Although the water diversion act defines a ‘‘[d]iversion’’ as ‘‘any activity which causes, allows or results in the withdrawal from or the alteration, modification or diminution of the instantaneous flow of the waters of the state’’; (emphasis added)
To construe the water diversion act, as the commissioner has, to allow the department to request information about additional diversion activities for which the plaintiff has not sought permits would fail to give effect to the limiting language—’’the diversion’’ and ‘‘of the proposed diversion’’—the legislature specifically chose in
That is not to say, however, that the department
Suppose, for example, that an applicant sought a permit for only one of several withdrawals of water on the same property, all of the withdrawals’ being part of and affecting the same water system. Review of the effects of one withdrawal on this water system might necessitate review of the effects of all withdrawals on the water system insofar as the department might reasonably determine that existence of these similar, yet unpermitted, diversions from the same water system so affected its review of the submitted application such that it could not fairly evaluate the submitted application; the department would likely be entitled to request information to ensure sufficient review of the submitted application. These requests are reasonable interpretations of the language of the water diversion act, which, relating to this example, authorizes the department to request a “description of the existing water system where the diversion is proposed“;
The department‘s authority to request information, pursuant to
In no phase of the proceedings in the present case, however, has the department ever asserted that its authority for requesting information relating to the plaintiff‘s excavation activities is due to any such inextricable hydraulic connection to the plaintiff‘s proposed withdrawals, despite the plaintiff‘s consistent position that any such hydraulic connection was absent. Moreover, the information requested in the October 21, 2008 letter on its face does not appear to be intended to elicit whether such a connection exists. Rather, the information appears to treat the excavation activities as independent diversions, connected to the proposed diversions only by the fact that they facilitate those activities. Such a request goes too far.
Merely because an applicant engages in an activity that gives rise to the need for, or utility of, distinct diversions on the same property does not mean that the water diversion act empowers the department to utilize its authority in the permit review process for one diversion to regulate the other diversion. Put another way, merely because the department has jurisdiction over all activities that qualify as diversions pursuant to the water diversion act does not mean that the department properly exercises the authority to request information about one diversion during the permit review process of the other diversion as if both were included in the application. See footnote 19 of this opinion. Indeed, if an owner or operator creates a distinct diversion for which a permit is required, but none is sought, the department is not left without recourse; the statutory scheme empowers the department to take enforcement action. See
Thus, in the context of the plaintiff‘s specific applications to withdraw water from basins and wells, to the extent that the department attempts to regulate the plaintiff‘s excavation activities as diversions in and of themselves, or determine whether they are diversions, by exercising powers granted to it to review an application for the plaintiff‘s proposed withdrawals, the department may not rely on
We next turn to the commissioner‘s alternative basis for its requests for information about the plaintiff‘s excavation activities in the October 21, 2008 letter, namely, that
The “effect of the proposed diversion” is addressed in the statutory scheme in two places.
Under the facts of the present case, the department‘s reliance on the authority granted by
Second, to the extent the commissioner claims that the plaintiff‘s excavation activities are, themselves, an “effect” of the withdrawals of water because such activities are facilitated or enabled by such withdrawals, such an interpretation requires this court to consider the excavation activities as requiring the use of and therefore causing the proposed withdrawals, and yet to consider those same excavation activities as resulting from and being the effect of the proposed withdrawals. Even assuming that this logically inconsistent interpretation of cause and effect were reasonable, the legislature knew how to use language to empower the department to request information about indirect or secondary effects of a regulated activity, as well as effects of additional activities that are facilitated or enabled by a regulated activity. See, e.g.,
Third, the department‘s interpretation of
Finally, to the extent that the commissioner relies on the residual grant of authority to request information necessary to fulfill the purposes of the water diversion act; see
Although we conclude that the excavation activities cannot be regulated as an “effect” of the proposed diversions, we also are compelled to note that we do not endorse the plaintiff‘s view that the proposed diversion‘s “area of influence” defines the limits of the department‘s authority in properly considering the diversion‘s effects. The term “area of influence” does not appear in the water diversion act or the regulations promulgated thereunder. Rather, it appears in a regulation addressing a different, and very specific, subject matter: mapping wells in stratified drift aquifers. See
Although the preceding analysis disposes of the parties’ claims, because the trial court and the commissioner relied heavily on this court‘s decision in Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, supra, 293 Conn. 93, as supporting the department‘s authority for its expansive requests for information, we briefly address that decision. The commissioner claims that Unistar Properties, LLC, supports the department‘s authority to request information about the excavation activities as diversions themselves because it need not be bound “merely [by] the particular withdrawal identified by [the plaintiff]” in its applications. The commissioner also claims that Unistar Properties, LLC, supports the department‘s expansive requests about the excavation activities as the “effect of the proposed diversion” because only it, not the plaintiff, determines what the “effects” of the plaintiff‘s proposed withdrawals are. We conclude that, although Unistar Properties, LLC, supports the general proposition underlying the commissioner‘s argument, that case is inapposite as applied to the particular information at issue in the present case.
In Unistar Properties, LLC, it was undisputed that the agency had statutory authority to request the information required from the applicant. The question at issue in that case was whether the applicant‘s submission of expert testimony as to the ultimate question for which the information had been sought could divest the agency of authority to demand the information or could shift the burden to the agency to prove why the information nonetheless was necessary. Id., 106–107, 111–13.38 By contrast, for the reasons previously set forth in this opinion, in the present case, there is no express or implied grant of authority for the department
Nevertheless, Unistar Properties, LLC, does support the commissioner in one limited respect, to which we already have alluded. In that case, we concluded that the department had the right to make its own independent assessment as to the effect of the applicant‘s proposed actions, irrespective of the opinion of the applicant‘s expert that the actions would not give rise to the harm at issue. Id., 112. In the present case, as we previously have indicated, the department is not required to accept the plaintiff‘s application as conclusively complete and accurate. Thus, insofar as the water diversion act requires the department to consider the ultimate question of what effect the proposed diversion has on water resources and other matters related thereto, the department need not accept the plaintiff‘s assertions that any “effect of the diversion” on water resources is limited to the area of influence and that it need not provide information beyond that limit. If the department is of the view that information beyond that limit is necessary to determine what effect the proposed diversion has on water resources, the department has authority to request information about water resources beyond such area. In light of the expansive requests that were made in the present case, however, we caution that, whatever metric is proper for determining how much information the department may request, there are limits to the department‘s reasonable exercise of such authority to demand information of an applicant. See id., 111 n.15 (“[w]ith respect to requests for inventories of plant and animal species outside a regulated area, there may be a situation in which the distance between the regulated area and the areas on the property for which an inventory is requested is so remote and makes it so unlikely that the activity could have any effect on the wetlands that it would be arbitrary and capricious for the commission to impose such a demand on an applicant” [emphasis in original]).39
Finally, in light of the procedural posture of the present case, we clarify what our decision does not do. This decision does not, nor could it, determine whether the information submitted by the plaintiff in support of its applications—both its initial submissions and its supplemental submissions—is sufficient, or whether the plaintiff will ultimately be entitled to the water diversion permits. This appeal is neither an appeal from the denial of an application for a permit because it was deemed incomplete by the department; see, e.g., id., 93; nor an appeal from the denial of an application on its merit. See, e.g., AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. 150. Nothing in this decision should be considered to decide whether the department, in implementing the water diversion act in other factual scenarios, may regulate excavation activities as a “diversion,” whether any exemptions apply to these activities; see footnote 21 of this opinion; or whether other agencies’ jurisdiction over these activities is concurrent or overlapping. See Sams v. Dept. of Environmental Protection, supra, 308 Conn. 391–96; see also footnote 40 of this opinion. In addition, this appeal does not involve any determination of whether the department may institute enforcement actions against the plaintiff to enjoin those diversions, if any, for which the plaintiff has not sought permits. Instead, our decision delineates the scope of the department‘s authority to request information from the plaintiff for the specific diversions under review in these specific permit applications. Only after the permit review process will a record be available for suitable review of any other issues left unresolved by this appeal.
We therefore conclude that, in the context of the plaintiff‘s applications for diversion permits for withdrawals of water, the department‘s attempts to regulate the plaintiff‘s excavation activities as diversions separate and apart from the withdrawals for which the plaintiff seeks permits or as an “effect” of the proposed diversions are not authorized by the water diversion act.
V
AUTHORITY TO REQUEST WETLANDS MITIGATION PLAN
The plaintiff next claims that, with respect to its North Branford facility, the trial court improperly construed the water diversion act as allowing the department to effectively reopen municipal wetlands permits that had been issued by the North Branford wetlands agency in 1974 and 1984, and to a demand wetlands mitigation plan for excavation activities previously authorized by those permits. The commissioner responds that this court should affirm the judgment of the trial court, which determined that the department exercises overlapping jurisdiction with the North Branford wetlands agency and that, absent a specific exemption in the water diversion act, the department may properly regulate the impacts of diversion activities on wetlands. We conclude that the water diversion act does not authorize the department‘s request for a mitigation plan from the plaintiff in the present case.
The record reveals the following additional facts. In 1974 and 1984, the plaintiff received permits from the North Branford wetlands agency that authorized the plaintiff to “remove [nineteen] areas of inland wetlands” on its North Branford property. Although the record does not indicate the full extent to which the plaintiff actually removed the indicated wetlands, the depart-
In the declaratory ruling, the commissioner ruled that, notwithstanding the North Branford wetlands agency‘s jurisdiction over the wetlands on the plaintiff‘s property, the water diversion act independently authorizes the department‘s request for information about the wetlands and that, as such, the department can properly request “information on inland wetlands and watercourses and will likely include information typically provided to a local wetlands commission.” The commissioner also ruled that the water diversion act authorizes the department to regulate wetlands activities “because the impacts [of the activities regulated by the water diversion act] may differ from impacts to wetlands from activities regulated by the [wetlands act]” and because the legislature failed to exempt from the water diversion act activities already permitted by local wetlands commissions. The trial court agreed.
On appeal, the plaintiff claims that the department‘s request for a wetlands mitigation plan constitutes a “reopening” of the plaintiff‘s municipal wetlands permits and, in essence, regulation of the activities previously authorized by such municipal wetlands permits. The plaintiff claims that allowing the department to reopen its long-expired municipal wetlands permits contravenes the legislature‘s “division of responsibility” over wetlands and incorrectly assumes that overlapping subject matter of the wetlands act and the water diversion act automatically creates concurrent permitting jurisdiction over wetlands. In response, the commissioner claims that its request for a wetlands mitigation plan was independently authorized by the water diversion act notwithstanding any overlapping jurisdiction.
Because the plaintiff makes the same reference to hydraulic relationship in its petition question; see part
We begin with the statutory language. The water diversion act authorizes the department to request and consider information relating to wetlands resources. Specifically,
Our resolution of the first question of the plaintiff‘s petition in part IV B of this opinion largely resolves this issue, however. The department has not invoked these provisions in order to determine the effect of the plaintiff‘s proposed diversions—the plaintiff‘s withdrawals of water—on wetlands habitats; it has invoked them, instead, to determine and mitigate the effect of the plaintiff‘s prior excavation activities on wetlands habitats. Indeed, the October 21, 2008 letter phrases the scope of the request in terms of “post-1990 expansion of the quarry,” not in terms of whether the plaintiff‘s withdrawals of water affect (or affected) wetlands resources other than in their role as enabling the plaintiff to excavate. As discussed in part IV B of this opinion, in the context of the permit review process for the plaintiff‘s proposed withdrawals of water, the department‘s attempt to regulate the plaintiff‘s excavation activities, either as an “effect of the proposed diversion” or as a diversion in and of itself, by requesting information about the effect of excavation activities on wetlands exceeds the authority granted by The commissioner additionally claims, however, that the alteration of wetlands is a diversion in and of itself and, therefore, that the water diversion act grants the department independent authority to request information about the effect of these wetlands alterations on Finally, the plaintiff claims that, with respect to its North Branford facility, the trial court improperly affirmed the commissioner‘s conclusion that the department had the authority to delay processing the plaintiff‘s NPDES permit application required under the clean water act until it provided the department with the information requested in connection with its diversion permit application required under the water diversion act. We agree with the plaintiff that the regulation upon which the department relies for this authority does not allow it to delay processing the plaintiff‘s NPDES permit application. As discussed previously in this opinion, the plaintiff‘s North Branford facility requires the removal of a sub- At some point during the permit review processes for both the NPDES permit application and the water diversion permit application, the department “became concerned about a possible downstream flooding hazard and the possibility of adverse water quality impacts to the receiving surface waters resulting from erosion and sedimentation . . . [and] communicated these concerns to representatives for [the plaintiff] . . . .” The department concluded that, because “the activity addressed in the diversion permit application is directly associated with activity addressed in the request to modify the NPDES discharge permit” pursuant to The third question of the plaintiff‘s petition for a declaratory ruling asked whether “the [department may] decline to process or delay processing an NPDES permit renewal on the ground that the applicant has not supplied to the [department] requested additional information regarding a pending water diversion permit application.” The commissioner ruled that the department could properly delay processing the plaintiff‘s NPDES permit application because Although the parties focus their discussion on whether the plaintiff‘s NPDES permit application is “associated with” its water diversion permit application, in our view, the scope of the department‘s authority under this regulation is principally dictated by the regulatory definition of “application,” which is expressly incorporated into The parties agree that the references in the first sentence of By contrast to the phrase “any other permit application” in the first sentence of Our interpretation of We also note that the department‘s concerns about the plaintiff‘s water diversion activities appear to be more properly addressed by use of the powers conferred to it by the water diversion act, not the regulations implementing the clean water act. Discharges authorized pursuant to Because the department does not claim authority to delay processing the plaintiff‘s NPDES permit application under any source other than The judgment is reversed and the case is remanded with direction to sustain the plaintiff‘s appeal. The commissioner‘s cross appeal is dismissed as moot. In this opinion the other justices concurred.VI
DELAY IN PROCESSING NPDES PERMIT APPLICATION
Notes
(1) The need for the diversion;
(2) The reasons for the diversion and the use of the diverted water;
(3) A description of the existing water system where the diversion is proposed;
(4) The locations of withdrawals and discharges of water the applicant proposes to divert;
(5) The quantity, frequency and rate of water the applicant proposes to divert;
(6) The length of time for which the diversion permit is sought;
(7) The effect of the proposed diversion on public water supplies, water quality, wastewater treatment needs, flood management, water-based recreation, wetland habitats, waste assimilation, agriculture, fish and wildlife and low flow requirements;
(8) The alternatives, if any, to the proposed diversion including a comparative analysis of the cost and environmental impact of such alternatives;
(9) Conservation measures instituted by the applicant and an analysis of the consistency of the services or need for the diversion with the applicant’s long-range water conservation plan adopted pursuant to
(10) For a proposed diversion that involves a transfer from one water supply system to another, as defined in
(1) The effect of the proposed diversion on actually and potentially affected water resources;
(2) The need for the diversion of the applicant and the state;
(3) The relevant state water plan, if any, established by the Water Planning Council pursuant to
(4) Any water supply plan filed pursuant to
(5) Any local or regional water-supply plan, the state plan of conservation and development, and any other comprehensive plan of water resource management adopted by the commissioner;
(6) 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;
(7) Benefit to the state and the applicant of the proposed diversion;
(8) The alternative to the proposed diversion including a comparative analysis of the cost and environmental impact of such alternatives;
(9) Long-range water-resource planning, management and conservation and use of the water resources of the state;
(10) The state water policy for the future set forth in
(11) If the proposed diversion will occur within an area that has a coordinated water system plan approved pursuant to
(12) The date of any registration of the diversion or the date of any previously issued permit;
(13) Existing water conditions and the effect of the proposed diversion on fish and wildlife and water quality for both present and future use of the state’s water resources; and
(14) For a proposed diversion that involves a transfer from one water supply system to another, as defined in
‘‘(b) If an application for a permit for a diversion described in subsection (a) of this section is submitted to the commissioner . . . the commissioner shall not require the person or municipality to pay any fine or penalty for the maintenance of such diversion . . . .’’
This court rejected the plaintiff‘s claim on appeal that “its expert evidence had established that the proposed subdivision would not affect the wetlands, [and, therefore, that the defendant] could not, as a matter of law [pursuant to § 22a-41 (d)], deny the application as incomplete because it was not entitled to the information it requested, including a wildlife inventory.” Id., 111. This court concluded that, even if § 22a-41 (d) might have prevented the defendant from denying or conditioning an application in the absence of an effect of the nonwetlands activity on the physical characteristics of the wetlands, the wetlands act independently authorized the defendant to request a wildlife inventory in order to make that determination. Id., 111. We also concluded that the plaintiff could not “[shift] the burden of providing information to support its application from the applicant to the [defendant] itself and [place] the [defendant] in the role of disproving the plaintiff‘s assertion . . . .” Id., 112.