Tilcon Connecticut, Inc. v. Connecticut Department of Environmental Protection (2013)

MEMORANDUM OF DECISION

The plaintiff, Tilcon Connecticut, Inc., owner and operator of earth materials excavation and processing facilities across the state, brings this appeal from a March 19, 2010, declaratory ruling of the Department of Environmental Protection ¹ (the department).   The commissioner of the department, in her declaratory ruling, issued findings of fact and legal analysis with conclusions of law.   She concluded that the department staff had not exceeded its authority under the Connecticut Water Diversion Policy Act (Diversion Act), General Statutes §§ 22a–365 to 22a–378.   The plaintiff has exhausted all administrative remedies and is aggrieved by the commissioner's ruling.   It brings this appeal under General Statutes §§ 4–176(h) and 4–183(a).

The record shows that on September 2, 2009, the plaintiff submitted a petition for a declaratory ruling to the department.  (Return of Record,² ROR, Item B, no.   SE–23.) The department and the plaintiff filed stipulated facts, including twenty-five exhibits, dated December 31, 2009.  (ROR, Item B.) Pursuant to a December 30, 2009 scheduling order by the commissioner (ROR, Item D, no. 21), the plaintiff submitted a brief to her on January 21, 2010.   (ROR, Item B, Tilcon Brief.)   The department submitted its brief on January 22, 2010.  (ROR, Item B, DEP Staff Brief.)   Both parties submitted their reply briefs on February 5, 2010.  (ROR, Item B, Tilcon Reply Brief and DEP Staff Reply Brief.)

In addition to the materials submitted by the plaintiff and the department, the Commissioner also invited the public to provide written comments on the petition.  (ROR, Item B, no.   SE–24.) She received three written comments.   One comment, from the Connecticut Fund for the Environment, supported the department's position as properly within the scope of its authority under the Diversion Act and its regulations.  (ROR, Item D, no. 18.)   The other two comments, from the Connecticut Water Works Association and Haynes Materials, Inc., agree with the Petitioner that it is beyond the authority of the department to ask for this information.  (ROR, Item D, nos. 19 and 20.)

The Commissioner expressed her intent to issue her declaratory ruling on November 2, 2009.  (ROR, Item B, no.   SE–24.) She issued her declaratory ruling on March 29, 2010.  (ROR, Item A.)

The findings of fact are stated in part as follows:

A.  Tilcon owns five facilities [including one] in ․ North Branford that are involved to varying degrees in the extraction and processing of earth materials.   In June 2003, Tilcon submitted individual applications to the [department's] [i]nland [w]ater [r]esources [d]ivision (division) for water diversion permits.   On July 18, 2006, the [division] responded to these applications with a request for additional information from Tilcon regarding overall site characteristics and a resources inventory to facilitate the evaluation of impacts to wetlands and water resources required by the Diversion Act. Tilcon's response in March 2007 expressed its legal opinion that the [department] was not entitled to that information because Tilcon's earlier applications confirmed the limited impact of its proposed withdrawals.   Tilcon submitted supplemental application information limited by its interpretation of the scope of [the department]'s right to request site information.   Numerous attempts were made to reach a compromise, including an offer from [the department] for a shorter permit term in exchange for information on portions of the sites.   On October 21, 2008, [the division], by letter, reiterated the basis for its request for this information.   After receipt of that letter, Tilcon did not present the information requested and filed its initial request for a[d]eclaratory [r]uling.

* * *

C. [Tilcon] uses water at all its facilities from man-made basins.   These basins provide water for quarry operations, including aggregate washing, equipment cooking, and dust suppression.   The source of water for these basins is stormwater and, to some extent, groundwater seepage.   The water pumped from these basins is used at various locations around the sites.   It is not used directly for excavation or extraction.   The water withdrawal is necessary for the continued operation of the facilities.   The basins are located at lower elevations on each site to enable the manipulation and collection of stormwater for each facility's needs.

D. On October, 21, 2008, the [department] requested information it deemed necessary to find [Tilcon]'s application complete.   In the request [the department] sought:

1.  For the existing limits of the processing and excavation areas and any areas proposed to be disturbed for the duration of the permits, site plans with:

Delineated boundaries of inland wetlands and watercourses;

The location of the FEMA [Federal Emergency Management Agency] floodplain and floodway and the elevation contour of the base flood;

Existing topography and proposed topography in any areas of expansion;

Location and extent of buffer areas to protect inland wetlands and watercourses;

An erosion and sedimentation control plan;  and

Adequate stormwater control measures.

2. A hydraulic and hydrological report that demonstrates that:

hydraulic aspects of the project sites have been properly designed within accepted criteria, provided for in the statutes, regulations, and engineering practice;

project sites, specifically the North Branford and Wallingford quarries, do not impede or modify drainage patterns, flood flows, flood storage, or low flows in such a way as to cause adverse impacts to other properties or to the environment;  and

the project sites are constructed in such a way as to protect other properties and the environment from adverse pollution impacts.

3. If any expansion of the existing processing and/or excavation areas, proposed for the duration of the permit, will encroach into the delineated inland wetlands and watercourses, the following reports will be required:

aquatic and vegetation habitat surveys and assessment of the inland wetlands and watercourses to be impacted;

functions and values assessment of the inland wetlands and watercourses to be impacted;

an assessment of the impacts to the functions and values of the affected inland wetland and watercourses;  and

inland wetland and watercourses mitigation plan which proposes measures to offset assessed impacts.

4. For the Griswold site, in current and proposed excavation areas, information related to the presence of the wood turtle and eastern box turtle, and if present, plans to minimize and mitigate for any impact.

5. For the North Branford [s]ite:  a mitigation plan for impacts to 12 acres of wetlands;  a channel and crossing improvement plan which provides safe conveyance for the proposed 2 million gallons per day discharge and 25–year storm flow from the quarry outlet downstream to Cedar Lake;  and a plan to treat the quarry to be consistent with the [EPA] approved total maximum daily load for phosphorus, which limits the discharge to Cedar Lake and Linsley Pond to 28 kg [per] year or 2.33 kg [per] month.

ROR, Item A.

In her declaratory ruling, the Commissioner concluded, as a matter of law, that (1) the department's staff acted within the scope under the Connecticut Water Diversion Policy Act (Diversion Act), General Statutes §§ 22a–365 to 22a–378, when it requested additional information from the plaintiff on October 21, 2008, for its water diversion application;  (2) prior approvals of the plaintiff's regulated activity by the local inland wetlands commission do not preclude the department from seeking information on wetlands resources and diversion activities associated with those resources at the plaintiff's North Branford site;  and, (3) the department regulations specifically authorized the department staff to delay processing the plaintiff's National Pollutant Discharge Elimination System (NPDES) application ³ for the North Branford site because the related water diversion application was incomplete.  (ROR, Item A., pp. 22–24.)

Thus, the commissioner's first conclusion of law sustains the position that the department has the authority to regulate the plaintiff's diversion permit application by requesting “information related to wetlands, flood management, and water quality ․ because” the plaintiff's excavation and processing activities, “which includes the withdrawal of water from on-site basins, will result in the withdrawal from the instantaneous flow of the waters of the state.”  (Emphasis in original.)  (ROR, Item A, p. 9–10.)   This jurisdictional disagreement between the parties results in a substantial disparity regarding the geographic scope of the department's regulation of each of the plaintiff's sites.

For example, within its Wauregan and Plainfield excavation and processing area, the plaintiff alleges the physical and hydraulic impact of diversion 1 is 32.25 acres and the impact of diversion 2 is 35.75 acres.   The commissioner's declaratory ruling would allegedly allow the department, through its requests for information, to effectively define the total Wauregan and Plainfield area of impact, as approximately 960 acres.  (Amended Appeal, ¶ 32.)

The commissioner's second conclusion of law finds that the Diversion Act provides the department “separate and broad authority to review the wetlands impacts of diversion activities” and that “[t]his authority is not limited by the fact that local inland wetlands agencies are delegated authority to issue permits to conduct regulated activities.”  (ROR, Item A, p. 21.)  “[T]he legislature recognized the need for separate authority and review under the Diversion Act and authorized [the department] to carry out the regulation of diversion activities ․” and “in the unusual circumstances ․ where overlap exists, each entity's authority must remain separate and intact.”  Id. In particular, the overlapping authority of a local inland wetlands commission at the plaintiff's North Branford site does not preclude the department from seeking further information on wetlands resources and diversion activities there.

The commissioner's third and final conclusion of law holds that the department, under the federal Clean Water Act, “is required to implement” the Act's “provisions ․ articulated in the federal regulations and is authorized to modify [them] ․ to impose more stringent requirements.”  (ROR, Item A, p. 22.)  “Under its ․ authority to impose stricter requirements, [the department] promulgated its own regulations that include specific authority to delay processing a completed NPDES permit application when a related permit application is incomplete or may be denied.”  Id. In particular, “the NPDES permit would authorize the discharge of quarry water to wetlands and watercourses downstream of the North Branford facility.   The removal of this water from the quarry must be authorized by a diversion permit.   The related diversion permit application for the North Branford site is incomplete because [the department] has not been provided the site information [it] requested [from the plaintiff].   Staff members from the NPDES permit program are aware that IWRD's concerns about the diversion permit application for [the] North Branford [site] have not been addressed and as a result cannot determine that the proposed discharge will comply with applicable standards.”  Id.

As a result of this dispute, the plaintiff appeals the commissioner's declaratory ruling.   On December 21, 2010, after hearing arguments, the court directed the parties to confer, in an effort to compromise, and to contact the court by January 14, 2011, if the matter was resolvable on the following points:

1. [The plaintiff] should identify the nature of the diversions on the premises or potential diversions.   The parties may subsequently agree on the actual or potential diversions at the site.   If there is no agreement, then [the department] may choose to deny the permit applied for on the ground that the permit as sought is inappropriate.

2. Assuming that the parties agree on the number of diversions, [the department] may ask any questions that it deems necessary to protect the waters of the state in the case of such diversions.  (Emphasis in the original.)

3. To the extent that [the department] is concerned that there are general environmental harms occurring at the sites, [the department] may take appropriate enforcement action, including visiting the sites and/or posing questions to [the plaintiff].

(Court docket entry no. 136, December 21, 2010.)

The parties complied with the order and several months of on-again, off-again discussions of technical issues ensued.   The parties informed the court that they could not come to an agreement over the first point of this court's December 21, 2010 order—what were the actual or potential diversion sites.   Further arguments were thus heard on March 6, 2013.   During arguments regarding the first issue on appeal, the department admitted that the commissioner is not empowered to assess the entirety of the plaintiff's sites,⁴ notwithstanding the plaintiff's allegations that the commissioner's ruling effectively states the opposite claim.   See Amended Appeal, ¶ 32.   Additionally, the department stated that it did not “care how [the plaintiff goes] about excavating,” but rather the department was concerned with the actions or potential future actions of the plaintiff on the water regime on the plaintiff's sites,⁵ including the plaintiff's non-consumptive uses of water.⁶  While the plaintiff agreed with some of the department's concerns, it alleged that the department was ignoring the categorical limitations and exemptions in the statute,⁷ including the withdrawal of less than 50,000 gallons per day.   Further, the plaintiff posited that if the department had limited its requests to the potential impacts of withdrawing more than 50,000 gallons a day out of a well or detention basin, the parties would have made progress towards a resolution.⁸  The department countered that the plaintiff, in its petition for a declaratory ruling, did not ask about the applicability of any exemption or registration requirement under the Diversion Act. Thus, without a record, the issue of any exemption was not before the Court.⁹

For the second issue on appeal, the department argued that local wetlands commissions are not mere agents of the commissioner and that the Diversion Act, separately, allows the commissioner to request information to understand potential impacts on wetlands.¹⁰  The plaintiff offered that municipal wetlands commissions have exclusive authority over the sites and that the legislature did not intend to grant concurrent jurisdiction to the department.¹¹

For the last issue on appeal, the department argued that the department may delay the issuance of an NPDES permit when the issues involve a significant change in the volume of a proposed discharge into a watercourse, as the issue is folded into the inquiry the department is obliged to make under the Diversion Act.¹² The plaintiff contended that General Statutes § 22a–377(a)(3) specifically exempts federal clean water permitting from the scope of the diversion act.¹³

The plaintiff is classically aggrieved under Brouillard v. Connecticut Siting Council, 133 Conn.App. 851, 38 A.3d 174, cert. denied, 304 Conn. 923, 41 A.3d 662 (2012), as its withdrawal of state waters is necessary for the continued operation of its earth extraction and processing facilities.  (ROR, Item A.) The Diversion Act mandates any person commencing the diversion of “water from the waters of the state” to first obtain “a permit ․ from the commissioner.”  General Statutes § 22a–368.   The plaintiff alleges that the commissioner's conclusions of law in her declaratory ruling, as they relate to the permitting process, exceed the authority granted to her by the Diversion Act. See generally Amended Appeal.

The standard applicable to this court's review of administrative decisions is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes §§ 4–166 through 4–189.   The scope of review is very restricted.   “With regard to questions of fact, it is [not] the function of the trial court ․ to retry the case or to substitute its judgment for that of the administrative agency ․ The substantial evidence rule governs judicial review of administrative fact-finding ․ Substantial evidence can be reasonably inferred ․ This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review ․ The burden is on the [plaintiff] to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record ․ Even as to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion ․ Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts ․ Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes ․ Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ Furthermore, when a state agency's determination of question of law has not previously been subject to judicial scrutiny ․ the agency is not entitled to special deference.”   (Citations omitted;  internal quotation marks omitted.)  Lane v. Commissioner of Environmental Protection, 136 Conn.App. 135, 43 A.3d 821, cert. granted, 307 Conn. 906, 53 A.3d 221 (2012).

Since the commissioner, in her declaratory ruling, determined three questions of law that have not been previously subject to judicial scrutiny, these issues are of first impression for this court.   The department is not entitled to special deference in its construction of the Diversion Act. Id. “When construing a statute,” this court's “fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs us to first consider the text of the statute itself and its relationship to other statutes.   If after examining such text and considering such relationship, the meaning of the text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence for the meaning of the statute shall not be considered When a statute is not plain and ambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.”  (Citations omitted;  internal quotation marks omitted.)   Okeke v. Commissioner of Public Health, 304 Conn. 317, 325–26, 39 A.3d 1095 (2012).   In construing a statute, “common sense must be used and courts must assume that a reasonable and rational result was intended.”  Germain v. Manchester, 135 Conn.App. 202, 209, 41 A.3d 1100 (2012).

A declaratory ruling petition must be based on “the applicability to specified circumstances of a provision of the general statutes.”  General Statutes § 4–176.   A specific factual circumstance that served as one of the bases for the plaintiff's petition to the commissioner was the department's October 21, 2008 letter to the plaintiff requesting additional information in order to process the plaintiff's five permit applications.  (ROR, Item A, p. 6.) The commissioner used this letter to frame the issues and articulate her construction of the scope of the department's authority under the Diversion Act as it related to the plaintiff's permit applications.  Id.

Upon applying the law to the specific circumstances, the commissioner found, in the first of three conclusions, that the department's request for additional information in the October 21, 2008 letter did not exceed its statutory authority under the Diversion Act. (ROR, Item A, p. 8.) Both the plaintiff and the department agreed that the Diversion Act grants broad authority to the department.   The commissioner added that the department staff, in executing the Act's mandate, “must start with an understanding of the resources potentially affected by a proposed diversion before it can draw conclusions about the activity's impact or ‘effect’ on those resources.”  (Emphasis in original.)   Id.

The commissioner further concluded that the department's request for additional information beyond the withdrawals of water was required because the “withdrawals may not represent the full extent of the water diversion activities on-site.”  Id., 9. “[The department's] request is authorized because [the plaintiff's] mining activity ‘will result in the withdrawal ․ of the waters of the state.’   This ‘activity’ includes but is not limited to the withdrawal of water from on-site basins.”  Id. “[The department] has jurisdiction because ‘the site activity, which includes the withdrawal of water from on-site basins, will result in the withdrawal ․ of waters of the state.’  “ Id., 9–10.  “[The plaintiff] cannot deny the fact that its mining activities themselves are by definition a diversion that may be subject to permitting requirements.”  Id., 10.  “The requested information on topography and the extent of future excavations is critical to understanding current and future drainage patterns ․ [T]he impact of changing these patterns can only be determined by a thorough analysis of wetland resources in the area, including wildlife dependent on those resources.”  Id., 11.  “The DEP is ․ entitled to comprehensive site information.   Although water withdrawn from these basins is not used in the actual mining process, it is used for the processing and sale of product ․ The water's use in preparing materials for sale enables [the plaintiff] to remove more earth materials arguably impacting more resources and further altering the flow of water into and around the site and into basins.”  Id.

The commissioner then continued with a statutory construction of the Diversion Act. “If the legislature intended ․ a limitation then it could have placed it in the act.   One ‘cannot, by construction, read into statutes provisions which are not clearly stated.’  (Citation omitted.)  ․ The legislature proved itself perfectly capable of placing limits on the application of this statute by providing permitting exemptions ․ and authorizing [the department] to promulgate additional exemptions in regulations.   The intent to protect the public's interest in its water resources requires a liberal construction of [the department's] authority.  ‘Environmental statutes are remedial in nature and should be construed liberally to accomplish their purposes.’  (Citation omitted.)  ․ The absence of any limitation on the word ‘effect’ supports a liberal construction of [the department's] authority to further the purposes of the Diversion Act.” Id., 12.

“In interpreting ․ language, the first step is to examine the plain meaning ․ and its relationship with other statutes.  (Citation omitted.)  ․ The word ‘effect’ is defined as ‘[s]omething brought about by cause or agent, a result.’  (Citation omitted.)  ․ Therefore, the effect of the diversion includes on-site mining activities that are furthered by the diverted water.”   Id.

“[T]he fact that water flows over land into [the plaintiff's] basins ․ has a potential hydraulic effect on the watershed tributary ․ and the resources within that watershed.   These basins not only collect large amounts of water that could support other resources but also keep this water out of the way of quarry operations, further evidence of the connection these basins have with actual mining operations.”  Id., 13.

Additionally, the commissioner concluded that the decision of the Supreme Court in Unistar supports the department's authority to seek information on site resources as the department deems necessary to understand and independently review the proposed activity and determine if a particular site's resources are impacted.¹⁴  She stated that court in Unistar ruled that a government entity, granted the authority to independently request information in its review and to independently make decisions based on such information, is not bound by determinations made by the applicant.  Id.,16.

The commissioner further concluded that the department's “longstanding approach to gathering information necessary to understand the effects of a diversion, as evidenced by documents provided from its files, supports the [department's] interpretation of its authority.”  Id., 18.   She also found the plaintiff's hardship arguments unpersuasive and unsupported by the Act. Lastly, on the first question of law, she concluded that the delegation of authority to local land use agencies or other department divisions does not impact the department's overall authority to request site information.  Id., 19.

In construing the first question of law—one of first impression—this court seeks “to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.”  Okeke v. Commissioner of Public Health, supra, 340 Conn. 325–26.   The commissioner is not entitled to special deference of her construction of the Diversion Act. See Lane v. Commissioner of Environmental Protection, supra, 136 Conn.App. 145.   But this court is bound by the substantial evidence standard and is highly deferential to the commissioner's findings of fact.  Id., 144.  General Statutes § 1–2z directs this court, when construing statues, to first consider the text of the statute itself and its relationship to other statutes.   The Diversion Act consists of sections 22a–365 to 22a–378, inclusive.  General Statutes § 22a–365.

The purposes of the Diversion Act are, in part, to permit diversion “only when such diversion is found necessary, is compatible with long-range water resource planning, proper management and use of the water resources of Connecticut and is consistent with Connecticut's policy of protecting its citizens against harmful interstate diversions and ․ [protecting] the water resources of the state ․” General Statutes § 22a–366.

The Diversion Act defines a “diversion” 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.”  General Statutes § 22a–367.  “Instantaneous flow” is defined by the Act as “the volume of the water that would occur in waters at a given point at any given moment.”   “Waters” is defined by the Act as “all tidal waters, harbors, statuaries, rivers, brooks, watercourses, waterways, wells, springs, lakes, ponds, marshes, drainage systems and all other surface or underground streams, bodies or accumulations of water, natural or artificial, public or private, which are contained within, flow through or border upon this state or any portion thereof.”  Id. These definitions must be considered in relation to the information required, by statute, in applying for a diversion permit.   An applicant “shall submit an application ․ with such information as the commissioner deems necessary to fulfill the purposes of [the Diversion Act].” General Statutes § 22a–369.   Such information includes, “but [is] not limited to”:

(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 study of cost factors, feasibility and environmental effects of such alternatives;

(9) Conservation measures instituted by the applicant prior to the application and the applicant's long-range water conservation plan to be implemented or continued after the issuance of a permit pursuant to sections 22a–365 to 22a–378, inclusive.   The plan shall be prepared in accordance with the memorandum of understanding entered into pursuant to section 4–67e and shall provide for:  (A) The identification of and cost effectiveness of distribution system rehabilitation to correct sources of lost water;  (B) measures which encourage proper maintenance and water conservation;  (C) a public information program to promote water conservation, including industrial and commercial recycling and reuse and (D) contingency measures for limiting water use during seasonal or drought shortages;

(10) In the case of a proposed interbasin transfer the commissioner may request the applicant to file an environmental impact report on the transfer which (A) considers the effect of the transfer on present and future water uses in the proposed donor basin;  (B) includes a plan for meeting water supply needs and demands in the donor basin for a minimum of twenty-five years;  and (C) analyzes the alternative solutions to the water supply or wastewater problem including comparative cost analysis of the proposed transfer relative to alternative measures.   In making such request, the commissioner shall indicate which aspect of such report enumerated in subparagraphs (A), (B) and (C) of this subdivision requires the submission of the environmental impact report with the application.

General Statutes § 22a–369.

This court, as does the plaintiff and the department, believes the Diversion Act provides a broad grant of authority to request and consider information concerning a proposed diversion and its impacts.   The contention between the parties is the limit of this broad authority.   This court first construes the meaning of “diversion” as defined in the Diversion Act.

The definition of “diversion” begins with “any activity which causes, allows or results ․” “Any” can mean “one, some, every, or all without specification.”   American Heritage College Dictionary 61 (3rd ed.1993).   “Activity” can mean “a specified pursuit or action.”  Id., 14.  “Causes,” as a verb, can mean “to be the cause or reason for.”  Id., 223.  “Allows” can mean “to let do or happen;  permit.”  Id., 36.  “Results,” as a verb, can mean “to come about as a consequence.”  Id., 1164.

There is no dispute between the parties as to the meaning of the phrase:  “in the withdrawal from or the alteration, modification, or diminution of the instantaneous flows of the waters of the state.”  “Withdrawal” can mean “to take back,” Black's Law Dictionary 1739 (9th ed.2009), or “a removal from a place or position of something that has been deposited.”   American Heritage College Dictionary 1549 (3rd ed.1993).  “Alteration,” and “modification” can mean “a substantial change to real estate” and “a change to something;  an alteration,” respectively.   Black's Law Dictionary 90, 1095 (9th ed.2009).   “Alteration” can also mean “the act or process of altering,” “the result of altering,” or “modification.”   Merriam Webster's Collegiate Dictionary 35 (11th ed.2005).   These meanings naturally bring us to the definition of “altering.”   To “alter” is “to make different without changing into something else,” “to become different,” or “change.”  Id. “Modification” can also mean “to make basic or fundamental changes in often to give a new orientation to or to serve a new end,” “to undergo change,” or “change.”  Id., 798.  “Diminution” can mean “the act, process, or an instant of diminishing;  decrease.”  Id., 351.   The latter part of the phrase, “instantaneous flow of the waters of the state” is expressly defined by the Act. “Of the state” might even be considered redundant as, by the Act's definition, “waters” is the “flow through or border upon this state or any portion thereof.”  General Statutes § 22a–367.

In its brief, the plaintiff asserts that a “diversion” is merely a change in the flow of water and nothing else.   This court disagrees.   As discussed above, a “diversion” is expressly defined by the statute and there is no ambiguity as to the plain meaning of its definition.   In its ordinary plain meaning, a “diversion,” according to the text of the statute, is:  at least one specified pursuit which (1) is the reason for, (2) or permits, or (3) comes about as a consequence, in the (a) taking back from, or (b) change, or (c) decrease [of the instantaneous flows of the waters of the state].

Thus, the plain meaning of the statutorily-defined “diversion” read in conjunction with the rest of the act, in particular the list of information necessary to complete a diversion permit application provided by section 22a–369, grants the agency to make a broad request for, inter alia, “the need for the [activity which causes ․ the withdrawal from ․ the waters of the state]”;  “the effect of the proposed [activity which causes ․ the withdrawal from ․ the waters of the state] on public water supplies ․”;  and, “the alternatives, if any, to the proposed [activity which causes ․ the withdrawal from ․ the waters of the state].”  General Statutes § 22a–369.

The commissioner, in her declaratory ruling, cites the Supreme Court decision in Unistar Properties, LLC v. Conservation and Inland Wetlands Commission, 293 Conn. 93, 977 A.2d 127 (2009), to support her contention that the department is granted the authority under the Diversion Act to seek information on the resources on the plaintiff's sites to understand and independently review the proposed activity and determine if the resources of a particular site are impacted.  (ROR, Item A, p. 15.)   This court agrees.

The unanimous decision in Unistar is highly analogous here.   In Unistar, the plaintiff, a co-owner of parcel containing five distinct wetland areas, including two vernal pools containing wildlife and plant species, appealed the decision of the Putnam inland wetlands commission, which denied the plaintiff's application for incompleteness in connection with a proposed subdivision on the parcel.   The plaintiff contended that the Wetlands Act “bars a wetlands commission from requesting information on wildlife and impacts thereon from the proposed activity when there is no evidence of a change in ․ a wetland.”   Unistar Properties, LLC v. Conservation and Inland Wetlands Commission, supra, 203 Conn. 110.   The Supreme Court found that nothing in the Wetlands Act “prohibits a commission from requesting information on wildlife in order to determine whether the proposed activity either will ‘affect ․ the wetlands' or will impact wildlife that ․ will ‘affect ․ such wetlands.’   Whether the ․ wetlands are impacted is a factual determination that only the commission is empowered to make and which cannot be reached in the absence of such information.”  (Citation omitted;  emphasis in original.)  Id., 111.

Here, the commissioner is granted the authority by the Diversion Act to determine the information required “as the commissioner deems necessary to fulfill the purposes” of the Diversion Act. General Statutes § 22a–369.   This same section expressly enumerates, but does not limit, the information the commissioner may request in order to determine—by the logic in Unistar —whether a proposed “diversion,” an activity that “causes, allows, or results in the withdrawal ․,” has an impact on the waters of the state.  (Emphasis added.)  General Statutes § 22a–367.

The plaintiff's reliance on Shanahan v. Dept. of Environmental Protection, 305 Conn. 681, 47 A.3d 364 (2012), is misplaced.   The Shanahan court found that the plain language of the relevant statute specifically limited [the department's] activities to waterward of the high tide line, and a separate statute determined that coastal municipalities were granted authority to activities landward of the high tide line.

The Supreme Court has construed environmental protection statutes liberally.   See Keeney v. Old Saybrook, 237 Conn. 135, 157, 676 A.2d 795 (1996);  Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 382, 627 A.2d 1296 (1993);  Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57, 441 A.2d 68 (1981).   Here, the plaintiff has pointed out several cases where courts have limited environmental statutes.   None of those cases is analogous here.

In Waterbury v. Washington, 260 Conn. 506, 800 A.2d. 1102 (2002), the Supreme Court did not allow an agency to redefine a watercourse into portions such that regulations apply only to that portion of the watercourse.  Id., 562–63.   That is not the case here.   Neither the commissioner nor this court has redefined any of the plain meaning of the statute to allow the department to regulate a “portion” of a diversion or other regulated activity.

In Animal Rights Front v. Jacques, 88 Conn.App. 358, 869 A.2d. 679, cert. denied, 273 Conn. 941, 875 A.2d 42 (2005), the Appellate Court found that the specific legislation, in the form of the Connecticut Endangered Species Act, takes precedence over a more general enactment, specifically, the Connecticut Environmental Protection Act. Id., 363.   Here, as discussed above, the plaintiff fails to show that there is other specific legislation that would take precedence over the activity regulated by the Diversion Act. (Emphasis added.)

The plaintiff asserts that in Red Hill Coalition, Inc. v. Town Plan and Zoning Commission, 212 Conn. 727, 563 A.2d 1347 (1989), the Supreme Court held that because the legislature had not included “agricultural land” among “natural resources” in the text of the statute, the court refused to “engraft amendments in to the statutory language.”  Id., 736.   But the plaintiff omits the court's rationale.   The court turned to the statute's legislative history and other extrinsic sources to attempt to ascertain the intent of the legislature.  “A perusal of the legislative history of § 22a–19 fails to disclose any indication of an intent to include agricultural land within the term ‘natural resources of the state.’  “ Id., 735.   Here, the plain meaning of the Diversion Act, while broad, is not ambiguous.   Thus, there is no need for this court to turn to extrinsic sources to determine the meaning of the relevant statutes.

The plaintiff also cited Avalon Bay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 832 A.2d 1 (2003).   But this case was overruled by statute in 2004 and upheld in 2009 by the Supreme Court in Unistar (see discussion above).   Thus, the plaintiff's reliance is faulty.

Notwithstanding the plaintiff's failure to show the commissioner exceeded her investigative authority, the commissioner, in her declaratory ruling, admits that the first question of law “lacks specific context to provide an answer applicable to the [plaintiff's] factual situation.”  (ROR, Item A, p. 6.) “The specific factual circumstances” that served as a basis for the commissioner's conclusions were based on the department's “actual request for additional information [from the October 21, 2008 request letter], which prompted [the plaintiff] to file its petition [for a declaratory ruling].”  Id., 6.

The commissioner must conclude, based on this opinion, where these specific diversions are for the purposes of discovery.   Thus, the appeal is remanded to the commissioner to issue factual findings on the plaintiff's diversion permit application consistent with this opinion.   If, the plaintiff concludes that the diversion sites, as designated, exceed the commissioner's authority, it may return to the court for further argument.

In the second question of law, the commissioner found that although “there is no bright line between the responsibility and jurisdiction of the [department] and the local wetlands authority ․ [t]he Diversion Act provides [the department] separate and broad authority to review the wetlands impacts of diversion activities.   This authority is not limited by the fact that local inland wetlands agencies are delegated authority to issue permits to conduct regulated activities ․ [T]he effect of the diversion on inland wetlands ․ may differ from impacts to wetlands from activities regulated by the Inland Wetland and Watercourse Act.” Id., 21.   She postulated that “[i]f the legislature wished to exclude activities already permitted by the local wetlands commission it would have done so.”  Id.

The plaintiff argues that the commissioner's ruling unlawfully authorizes the department to regulate, through the Diversion Act, activities in or near wetlands or watercourses that are not impacted by a water diversion and that have already been permitted by a municipal wetlands agency.   Plaintiff's brief, December 14, 2012, p. 32.   This court disagrees.   The plaintiff points to no law that precludes state agencies from possessing overlapping or concurrent jurisdiction on the same matters.   The plaintiff merely asserts that because the local agency acted as an “agent” of the department, interpreting the Wetlands Act and the Diversion Act leads to an absurd result.  Id., 33.

This court presumes that “those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results.”  Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 201, 708 A.2d, 1371 (1998).   Whether an agent-principal relationship exists is moot because the municipal wetlands agency and the department each have broad and concurrent jurisdiction granted by the Wetland Act and the Diversion Act, respectively, over the North Branford wetlands.   Although the record may show that some of the department's requests in its October 21, 2008 letter were duplicitous with the requests made by the North Branford Wetlands Inlands Commission for the plaintiff's permits issued in 1974 and 1985, the 2008 requests do not rise to the level of “absurd consequences or bizarre results.”  Id., 201.   Legal commentators often criticize that land use is often regulated by two or more agencies—usually without further provisions for resolving conflicts between them—and that in some cases, conflicting positions between two agencies can prevent approval entirely, greatly increasing the expense of obtaining an approval.   See generally 9B Conn. Prac., Land Use Law & Prac. § 56:1 (3d ed.).   While this may create an inconvenience for the plaintiff, it is hardly unlawful.  “Although the statutes may seek to regulate the same activity, and thus the jurisdiction of the local and state agencies overlaps, it is not unusual for one seeking a permit for a certain use or operation to apply to and be given such permission or license by more than one agency of government.”  Aaron v. Conservation Commissioner, 183 Conn. 532, 552, 441 A.2d 30 (1981).   This court agrees with the commissioner that if the legislature intended to exclude activities already permitted by municipal wetlands agencies it would have expressly done so.

For the final question of law the commissioner concluded that the EPA, in administering the NPDES program, had delegated authority to the state through a rigorous approval process to implement provisions of the Clean Water Act with the authority to modify its requirements.   Thus, the department, “[u]nder its delegated authority to impose stricter requirements ․ promulgated its own regulations that include specific authority to delay processing a completed NPDES permit application when a related permit application is incomplete ․” (Citation omitted.)  “This delay ensures that a NPDES permit is not issued when related concerns among permit programs are not sufficiently addressed.”  (ROR, Item A, p. 22.)

The plaintiff asserts that the commissioner's declaratory ruling violates federal and state law by authorizing the department to delay renewal of a federal water pollution control permit until its diversion permit demands have been met.   Plaintiff's brief, December 14, 2012, p. 34.   The court rejects this assertion.   Although the plaintiff points out that there is no authority in either the Diversion Act or the federal Clean Water Act that authorizes a delay in permitting under one program due to status of permitting in the other program, this is not dispositive.

The commissioner provides substantial evidence for her finding.   The EPA has delegated its authority to administer the NPDES permit program to the department.   As part of this delegation, the department is required to implement the provisions of the Clean Water Act provided by federal regulations.   Further, the department is “not precluded from ․ modifying any provisions to impose more stringent requirements.”  40 C.F.R. § 123.25(a) (2006).   Thus, the department's regulations provide the manner of review for NPDES permit applications.   In particular, section 22a–430–4(d)(3) of the Regulations of Connecticut State Agencies provides that “[t]he completeness of an application [for a water discharge permit] shall be judged independently of the status of any other permit application or permit for the same facility or activity.   The commissioner may delay processing a completed application if it associated with another application which is incomplete or which may be denied.”   Although the NPDES permit would authorize the discharge of quarry water to wetlands and watercourses downstream, the diversion of this water must be authorized by a diversion permit.  (ROR, Item A, p. 22.)   (Emphasis added.)

Thus this court agrees with the commissioner that the Diversion Act provides the department with separate and broad authority to review the wetlands impacts of diversion activities.   This authority is not limited by the fact that municipal wetlands agencies are delegated concurrent authority to conduct regulated activities provided by the Wetlands Act. Further, this court finds substantial evidence that federal law and regulations delegates to the department the authority and discretion to delay processing a completed NPDES permit associated with an incomplete diversion permit.

The appeal is dismissed as to second and third questions raised as issues in the plaintiff's appeal;  this court remands this case to the commissioner for fact finding on the plaintiff's incomplete diversion permit application consistent with this opinion.

Henry S. Cohn, Judge

FOOTNOTES

FN1. As of July 1, 2011, the Department of Environmental Protection is known as the Department of Energy and Environmental Protection.   Public Acts 2011, No. 11–80..  FN1. As of July 1, 2011, the Department of Environmental Protection is known as the Department of Energy and Environmental Protection.   Public Acts 2011, No. 11–80.

FN2. The court's citations are to the return of record, court docket entry nos. 108 through 126.   Court docket entry no. 108 lists the enumerated contents of the return of record..  FN2. The court's citations are to the return of record, court docket entry nos. 108 through 126.   Court docket entry no. 108 lists the enumerated contents of the return of record.

FN3. The NPDES permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States.   Point sources are discrete conveyances such as pipes or man-made ditches.   Industrial, municipal and other facilities must obtain permits if their discharges go directly to surface waters.   The NPDES permit program is managed by the United States Environmental Protection Agency (EPA) and, in most cases, administered by authorized states.   Federal Water Pollution Control Act Amendments of 1972, P.L. 92–500, October 18, 1972, 86 Stat. 816;  see also U.S. Environmental Protection Agency, NPDES, http:// cfpub.epa.gov/npdes/index.cfm..  FN3. The NPDES permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States.   Point sources are discrete conveyances such as pipes or man-made ditches.   Industrial, municipal and other facilities must obtain permits if their discharges go directly to surface waters.   The NPDES permit program is managed by the United States Environmental Protection Agency (EPA) and, in most cases, administered by authorized states.   Federal Water Pollution Control Act Amendments of 1972, P.L. 92–500, October 18, 1972, 86 Stat. 816;  see also U.S. Environmental Protection Agency, NPDES, http:// cfpub.epa.gov/npdes/index.cfm.

FN4. No transcript is available at the time of this opinion.   The source occurred at approximately 10:13 a.m. during oral arguments on March 6, 2013..  FN4. No transcript is available at the time of this opinion.   The source occurred at approximately 10:13 a.m. during oral arguments on March 6, 2013.

FN5. The source occurred at approximately 10:48 a.m. during oral arguments on March 6, 2013..  FN5. The source occurred at approximately 10:48 a.m. during oral arguments on March 6, 2013.

FN6. The source occurred at approximately 10:53 a.m. during oral arguments on March 6, 2013..  FN6. The source occurred at approximately 10:53 a.m. during oral arguments on March 6, 2013.

FN7. The source occurred at approximately 11:02 a.m. during oral arguments on March 6, 2013..  FN7. The source occurred at approximately 11:02 a.m. during oral arguments on March 6, 2013.

FN8. The source occurred at approximately 11:02 a.m. during oral arguments on March 6, 2013..  FN8. The source occurred at approximately 11:02 a.m. during oral arguments on March 6, 2013.

FN9. The source occurred at approximately 11:13 a.m. during oral arguments on March 6, 2013..  FN9. The source occurred at approximately 11:13 a.m. during oral arguments on March 6, 2013.

FN10. Id..  FN10. Id.

FN11. Id..  FN11. Id.

FN12. Id..  FN12. Id.

FN13. The source occurred at approximately 10:46 a.m. during oral arguments on March 6, 2013..  FN13. The source occurred at approximately 10:46 a.m. during oral arguments on March 6, 2013.

FN14. Unistar Properties LLC v. Conservation and Inland Wetlands Commission, 293 Conn. 93, 977 A.2d 127 (2009)..  FN14. Unistar Properties LLC v. Conservation and Inland Wetlands Commission, 293 Conn. 93, 977 A.2d 127 (2009).

Cohn, Henry S., J.