Tilcon Connecticut, Inc. v. Commissioner of Environmental Protection

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TILCON CONNECTICUT, INC. v. COMMISSIONER
OF ENVIRONMENTAL PROTECTION
(SC 19203)
Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued December 5, 2014—officially released July 28, 2015
Timothy S. Hollister, with whom were Aaron D. Levy
and, on the brief, Beth Bryan Critton, for the appellant-
appellee (plaintiff).
David H. Wrinn, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee-appellant (defendant).
Daniel J. Krisch and Ann M. Catino filed a brief for
the Connecticut Business and Industry Association as
amicus curiae.
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.
Opinion
EVELEIGH, J. The plaintiff, Tilcon Connecticut, Inc.,
an earth materials excavation and processing company,
petitioned the defendant, the Commissioner of Environ-
mental Protection (commissioner), for a declaratory
ruling defining the scope of the authority possessed by
the Department of Environmental Protection (depart-
ment)1 to request certain information from the plaintiff
for its various water diversion permit applications pur-
suant to the Connecticut Water Diversion Policy Act
(water diversion act), General Statutes § 22a-365 et seq.2
The plaintiff appealed the commissioner’s declaratory
ruling, which deemed all of the department’s actions
authorized under the water diversion act, to the trial
court pursuant to General Statutes §§ 4-176 (h) and 4-
183 (a). The plaintiff now appeals from the judgment
of the trial court, which endorsed in all material
respects the commissioner’s interpretation of the water
diversion act,3 claiming that the trial court improperly:
(1) construed the water diversion act as essentially
granting the department jurisdiction and authority over
all environmental resources and issues, including juris-
diction and authority over the plaintiff’s excavation
activities, pertaining to the entirety of its properties,
even though a large percentage of those resources and
issues are, according to the plaintiff, hydraulically unre-
lated to the proposed water diversions for which the
plaintiff requests permits; (2) construed the water diver-
sion act as allowing the department to effectively
reopen duly issued municipal wetlands permits by
demanding a wetlands mitigation plan for excavations
previously authorized by such permits; and (3) upheld
the department’s authority to delay processing the
renewal of the plaintiff’s National Pollutant Discharge
Elimination System (NPDES) permit until it provided
the department with the information requested in con-
nection with its permit applications under the water
diversion act. We conclude that the water diversion
act does not authorize the department’s attempts to
regulate the plaintiff’s excavation activities because
those activities are neither diversions within the scope
of the plaintiff’s permit applications nor properly
viewed as effects of the diversions for which permits
were sought. 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 that had been authorized by prior municipal
wetlands permits, and that the department may not
delay processing the plaintiff’s NPDES permit applica-
tion due to a pending water diversion permit applica-
tion. Therefore, we reverse the judgment of the trial
court and remand the case with direction to sustain the
plaintiff’s appeal.
To provide some context for the issues in the present
case, we begin by setting forth the basic framework of
the water diversion act. The water diversion act was
enacted to ‘‘[protect] the water resources of the state
. . . .’’ General Statutes § 22a-366.4 It requires, among
other things, a permit for any diversion of the water
contained within, flowing through, or bordering upon
this state. See General Statutes §§ 22a-367 (9) and 22a-
368 (b).5 Although the water diversion act defines
‘‘ ‘[d]iversion’ ’’ to include effectively any activity that
changes the flow of any amount of water; General Stat-
utes § 22a-367 (3); it thereafter significantly narrows
the scope of the activities requiring permits by way
of exemptions. See General Statutes § 22a-377 (a).6 To
obtain a permit to divert water, an applicant must pro-
vide the department with information ‘‘the commis-
sioner deems necessary to fulfill the purposes of [the
water diversion act],’’ including, but not limited to, a
series of enumerated items relating to the nature of the
diversion and the effect thereof on water resources.
General Statutes § 22a-369.7 In acting on a completed
application, the commissioner must consider a variety
of factors that make use of the information required in
a permit application. General Statutes § 22a-373 (b).8
The commissioner may grant a permit for a period not
to exceed twenty-five years. Regs., Conn. State Agencies
§ 22a-377 (c)-2 (h) (1). We explore the water diversion
act in greater detail in part IV B of this opinion.
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 administra-
tive record. The plaintiff owns facilities used for earth
materials excavation and processing located on proper-
ties 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 maxi-
mum 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 General Statutes § 22a-368a,9 which
clarified that the water diversion act’s permitting
requirements applied to diversions predating its enact-
ment and provided amnesty for those who remedied
noncompliance with permitting requirements within a
certain time period. Each of the plaintiff’s withdrawals
of water enables it to excavate and process earth materi-
als on its properties. The plaintiff uses the water from
these ten sources for quarry operations, including wash-
ing aggregate, processing stone sand, cooling equip-
ment, and suppressing dust. Although these diversions
enable the plaintiff’s excavation activities on its sites,
the water is not used directly to excavate or extract
earth materials from the resources on its sites.
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 noncon-
sumptive 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 informa-
tion 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 activ-
ity. It also provided a description of whether the pro-
posed 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); 33 U.S.C. § 1342; and Gen-
eral Statutes § 22a-430, which ‘‘require any person or
municipality to obtain a permit prior to discharging
any substance into the waters of the United States or
Connecticut. In Connecticut, the department is respon-
sible for issuing both federal and state discharge per-
mits.’’ (Internal quotation marks omitted.) Burton v.
Commissioner of Environmental Protection, 291
Conn. 789, 793 n.4, 970 A.2d 640 (2009). The plaintiff’s
application for the North Branford site was the only
diversion for which the plaintiff sought a permit that
resulted in a discharge requiring an NPDES permit. In
that application, the plaintiff described how the North
Branford quarry collects stormwater that must be
pumped out of the quarry and discharged into a series
of sedimentation basins, where it later flows into a
pond. The application noted that the collection and
discharge of this stormwater into the pond had been
authorized by an NPDES permit.
The plaintiff included a variety of other materials
in support of its applications, including environmental
reports.10 In those reports, the plaintiff generally
described existing ecological conditions and wildlife
habitat characteristics at the entireties of the sites, but
provided more specific information only for those areas
adjacent to existing water withdrawals because it calcu-
lated, by way of the ‘‘area of influence,’’11 that the with-
drawals were minimal and not anticipated to have an
effect on ecological conditions on remote areas of
the properties.
Three years after submission of the permit applica-
tions, 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 plain-
tiff’s excavation activities for the duration of the
requested permits, namely, twenty-five years. Specifi-
cally, the department requested ‘‘a site plan which
details the overall proposed limits of earthwork, includ-
ing 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 water-
courses, 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 sedimenta-
tion controls . . . for all phases of development; [r]es-
toration 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 mea-
sures 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 water-
courses, fish and wildlife and water quality.’’
The plaintiff did not fully comply with the depart-
ment’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 stormwa-
ter collection exceeds [100] acres, the downstream
impact.’’12 The plaintiff relied on this ‘‘area of influence’’
metric even though, as will be discussed in further detail
in part IV B of this opinion, the water diversion act
makes no express reference to ‘‘area of influence.’’ With
respect to information about its excavation activities
for the full twenty-five year period, the plaintiff claimed
that it could not, in any event, forecast the extent of
its ‘‘site operations [that far] into the future [because
they are] based on the regional business climate and
restrictions mandated by local agencies’’ from which it
obtains its excavation permits.13 In accordance with its
own interpretation of the department’s authority, the
plaintiff submitted ‘‘all of the additional information
requested by the [department] in 2006 with respect to
the area of influence or discharge of each diversion,
as the applicant has calculated it.’’14 (Emphasis added.)
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 with-
drawal 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 activ-
ities—to be properly within the department’s jurisdic-
tion and authority. (Emphasis added.) In the letter, the
department asserted that, once the plaintiff’s withdraw-
als of water triggered the department’s jurisdiction, its
‘‘scope of review when determining whether [the plain-
tiff’s] application is complete is broad as the [d]epart-
ment is statutorily authorized to review, among other
factors, the effects [the plaintiff’s] activity may have on
wetlands or wildlife . . . [and] the possible environ-
mental 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 infor-
mation 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 pro-
cessing 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 depart-
ment requested about the plaintiff’s excavation activi-
ties 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
the plaintiff’s discharge of quarry stormwater author-
ized pursuant to the plaintiff’s NPDES discharge per-
mit.16 The plaintiff’s application for a renewal and
modification of the NPDES permit had been pending
before the department since 1998. Following the plain-
tiff’s submission of the North Branford diversion permit
application in 2006, the department informed the plain-
tiff that it would process the NPDES and diversion
permit applications concurrently.17
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 activi-
ties that are located on the diversion site but are hydrau-
lically 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 sup-
plied to the [department] requested additional informa-
tion regarding a pending water diversion permit
application?’’ The plaintiff and the department stipu-
lated 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 peti-
tion 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 com-
missioner explained that the water diversion act con-
ferred broad authority on the department to request
information about activities beyond the specific with-
drawals for which the plaintiff sought diversion permits
because the plaintiff’s excavation activities, themselves,
might be diversions. The commissioner also explained
that, even if the excavation activities were not, them-
selves, diversions, they were an ‘‘effect’’ of the plaintiff’s
proposed diversions because the plaintiff’s withdrawals
of water facilitated and enabled the plaintiff’s excava-
tion activities, in that the plaintiff would be unable to
conduct any of its excavation activities if it did not
have the diverted water it needed to cool its excavation
machines, suppress dust, and wash aggregate. Because
the excavation activities were an ‘‘effect’’ of the diver-
sion, the commissioner reasoned that the department
could properly request information about the effect of
the excavation activities on environmental resources
for the entirety of the plaintiff’s proposed excavation
sites for the next twenty-five years.
The commissioner resolved the second petition ques-
tion—whether the department could properly request
a mitigation plan for wetlands alterations authorized
by prior municipal wetlands permits for the North Bran-
ford property—by concluding that the department exer-
cises 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 activi-
ties 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 Regula-
tions of Connecticut State Agencies, a regulation prom-
ulgated 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 with-
drawn 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 §§ 4-176 (h) and 4-183 (a).
As to all three questions, the trial court construed the
water diversion act in a similar manner to how the
commissioner had construed it. The trial court deter-
mined, however, that the commissioner needed to make
findings as to ‘‘where these specific diversions are for
the purposes of discovery’’ with respect to the plaintiff’s
diversion permit application.20 Accordingly, the trial
court rendered judgment dismissing the plaintiff’s
appeals as to the second and third questions but
remanded the case to the commissioner for ‘‘factual
findings on the plaintiff’s diversion permit application’’
as to the first question. This appeal followed. Additional
facts will be set forth as needed.
On appeal to this court, the plaintiff claims that the
trial court improperly: (1) construed the water diversion
act as essentially granting the department jurisdiction
and authority over all environmental resources and
issues, including the plaintiff’s excavation activities,
pertaining to the entirety of its properties, even though
a large percentage of those resources and issues are,
according to the plaintiff, hydraulically unrelated to the
proposed water diversions for which the plaintiff has
requested permits; (2) construed the water diversion
act as allowing the department to effectively reopen
duly issued municipal wetlands permits by demanding
a wetlands mitigation plan for excavations previously
authorized by such permits; and (3) affirmed the depart-
ment’s authority to delay processing the plaintiff’s appli-
cation to renew its NPDES permit until it provided the
department with the information requested in connec-
tion with its permit applications under the water diver-
sion act. The commissioner urges this court to affirm
the trial court’s judgment deeming the commissioner’s
interpretation of the water diversion act proper as to
all three questions.
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 excava-
tion 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 dis-
cuss 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
Uniform Administrative Procedure Act (UAPA), Gen-
eral Statutes § 4-166 et seq. It is well settled that ‘‘[t]he
legislature may . . . deem otherwise interlocutory
actions of the trial courts to be final judgments, as it
had done by statute in limited circumstances.’’ Abreu
v. Leone, 291 Conn. 332, 338, 968 A.2d 385 (2009); see,
e.g., General Statutes § 4-183 (j) (deeming remand order
issued by trial court to be final judgment where trial
court finds ‘‘that substantial rights’’ of person appealing
‘‘have been prejudiced’’ by error in administrative rul-
ing). ‘‘Alternatively, the courts may deem interlocutory
orders or rulings to ‘have the attributes of a final judg-
ment’ if they fit within either of the two prongs of
the test set forth in [Curcio]. . . . Under Curcio . . .
interlocutory orders are immediately appealable if the
order or ruling: (1) terminates a separate and distinct
proceeding or (2) so concludes the rights of the parties
that further proceedings cannot affect them.’’ (Citations
omitted.) Abreu v. Leone, supra, 338–39. If an adminis-
trative appeal governed by the UAPA contains a remand
order, inquiry is properly made into whether the remand
falls within § 4-183 (j), rendering it a final judgment by
statute ‘‘irrespective of both the nature of the remand
and the administrative proceedings that are expected to
follow it.’’ (Emphasis omitted; internal quotation marks
omitted.) Hogan v. Dept. of Children & Families, 290
Conn. 545, 558, 964 A.2d 1213 (2009), quoting Commis-
sion on Human Rights & Opportunities v. Board of
Education, 270 Conn. 665, 675, 855 A.2d 212 (2004).
When the remand falls outside of § 4-183 (j), a final
judgment exists if the decision rendered by the trial
court satisfies either prong of Curcio. See Hogan v.
Dept. of Children & Families, supra, 556–60.
In the present case, irrespective of whether the
remand would fall within § 4-183 (j), the trial court’s
decision plainly satisfies Curcio. Although the trial
court ordered a remand for factual findings, it affirmed
the declaratory ruling in all substantive respects.21 The
trial court’s unqualified agreement with the commis-
sioner’s interpretation of its authority as set forth in
declaratory ruling, coupled with the fact that any pro-
ceedings upon remand would have involved the applica-
tion of that interpretation, leads us to conclude that
the trial court implicitly determined that the record was
sufficient to provide a proper basis for the issuance of
the declaratory ruling. As aptly noted by the plaintiff,
‘‘[t]hat the trial court fashioned a remand order pur-
porting to govern further inquiry into regulated diver-
sions does not undermine the finality of its adjudication
of the scope of the act under which that inquiry would
occur.’’ Therefore, we conclude that the trial court’s
judgment, as a whole, had so concluded the rights of
the parties such that further proceedings could not
affect them as it pertained to the declaratory ruling and,
thus, constitutes a final judgment under the second
prong of Curcio.
III
STANDARD OF REVIEW
We next set forth the standard of review. ‘‘Administra-
tive 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 rec-
ognized 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 statu-
tory provisions . . . under which it acquires authority
unless the statutes expressly grant it that power.’’ (Inter-
nal 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 Com-
mission, 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 enforce-
ment.’’ (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 inter-
pretation 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] consid-
eration 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 inter-
pretation of the water diversion act has never been
subjected to judicial scrutiny. The commissioner does
claim, however, that the department’s interpretation
of the water diversion act should be entitled to some
measure of deference by this court because, in applying
the water diversion act, it has: (1) consistently required
information from other applicants for water diversion
permits that was similar to the category and extent of
information requested in the October 21, 2008 letter;
and (2) consistently evaluated the direct and indirect
effects of proposed diversions in acting on diversion
permit applications. In support of this claim, the depart-
ment submitted excerpts from various permit review
processes, including correspondence and other internal
memoranda, for a variety of applicants seeking diver-
sion permits from the department.22 Although the com-
missioner pointed to the department’s ‘‘consistency in
requesting comprehensive site information before issu-
ing diversion permits’’ from other ‘‘applicants for large-
scale projects that require diversion permits,’’ the trial
court concluded that the department’s interpretation
was not entitled to special deference and we agree.
The department’s interpretations of the water diver-
sion 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 corre-
spondence and internal documents. Accordingly, we do
not accord them any deference. See Sarrazin v.
Coastal, Inc., supra, 311 Conn. 610–11 (‘‘[t]he require-
ments 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 interpre-
tation 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 fundamen-
tal objective is to ascertain and give effect to the appar-
ent 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 Environ-
mental Protection, 308 Conn. 359, 377–78, 63 A.3d 953
(2013); see also General Statutes § 1-2z. ‘‘Furthermore,
we interpret statutory language in light of the purpose
and policy behind the enactment.’’ Willow Springs Con-
dominium Assn., Inc. v. Seventh BRT Development
Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). Since all
issues discussed involve our statutory construction of
the water diversion act and other relevant environmen-
tal statutes and regulations, our standard of review is
the same for all three questions.
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 activi-
ties 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, there-
after, 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 commit-
ted 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 refer-
ence point for the declaratory ruling, but did not explic-
itly 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 circum-
stances of the present case, nor could its answer prop-
erly address the evolving arguments of the parties to
these proceedings.23
The crux of the parties’ dispute centers around the
department’s requests in the October 21, 2008 letter,
specifically the department’s requests for information
about the plaintiff’s excavation activities, which
resulted in the department’s request for an almost site-
wide resource inventory. We glean from the declaratory
ruling that the commissioner reframed the first question
presented in the plaintiff’s petition to reference the
department’s October 21, 2008 letter, addressing
whether, in the context of the permit review process
for the plaintiff’s applications for the withdrawal of
water, the water diversion act authorizes the depart-
ment to request information concerning, and essentially
regulate, the plaintiff’s excavation activities and the
environmental effects of those activities. In light of the
commissioner’s conclusion that it could not address the
question as framed and both parties’ evolving positions
during the course of these proceedings, we adopt this
iteration of the question. See Gianetti v. Norwalk Hos-
pital, 211 Conn. 51, 57, 557 A.2d 1249 (1989) (reframing
reservation requested by parties pursuant to General
Statutes § 52-235 because questions reserved were
framed too broadly and noting that it was proper
because of ‘‘the importance of the issues involved and
the fact that the claims of the parties have been fully
presented in argument and brief’’ [emphasis omitted;
internal quotation marks omitted]), quoting General
Motors Corp. v. Mulquin, 134 Conn. 118, 133, 55 A.2d
732 (1947); Republican Party of Connecticut v. Merrill,
307 Conn. 470, 473 n.3, 55 A.3d 251 (2012) (reframing
question presented in declaratory action treated as
administrative appeal pursuant to § 4-176 [a] to ‘‘more
accurately reflect the question presented in light of the
arguments’’ of parties).
B
Construction of the Water Diversion Act
We now turn to the merits of the plaintiff’s first peti-
tion question: whether, in the context of the permit
review process for the plaintiff’s applications for with-
drawals 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 commis-
sioner asserts that the plaintiff’s submission of the appli-
cations gave the department jurisdiction and authority
over the excavation activities either as diversions them-
selves 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
the negative on the basis of the water diversion act,
viewed in its entirety.
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 reli-
ance on this court’s decision in Unistar Properties,
LLC v. Conservation & Inland Wetlands Commission,
293 Conn. 93, 977 A.2d 127 (2009). Finally, we acknowl-
edge the limits of this opinion.
As we explained previously in this opinion, the pur-
pose 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 . . . .’’ General Statutes § 22a-366.
The legislature has ‘‘declared that the diversion of the
waters of the state shall be permitted only when such
diversion is found to be necessary, is compatible with
long-range water resource planning, proper manage-
ment and use of the water resources of Connecticut
and is consistent with Connecticut’s policy of protecting
its citizens against harmful interstate diversions . . . .’’
General Statutes § 22a-366.
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, modi-
fication or diminution of the instantaneous flow of the
waters of the state . . . .’’ (Emphasis added.) General
Statutes § 22a-367 (2); see also General Statutes § 22a-
367 (4) (‘‘[i]nstantaneous flow’’ means ‘‘the volume of
water that would occur in waters at a given point at
any given moment’’); General Statutes § 22a-367 (9)
(‘‘[w]aters’’ means ‘‘all tidal waters, harbors, estuaries,
rivers, brooks, watercourses, waterways, wells, springs,
lakes, ponds, marshes, drainage systems and all other
surface or underground streams, bodies or accumula-
tions of water, natural or artificial, public or private,
which are contained within, flow through or border
upon this state or any portion thereof’’). Any activity
that alters, at any moment, the volume of any accumula-
tion of water contained within, flowing through, or bor-
dering upon this state constitutes a diversion.
The legislature has exempted, however, certain diver-
sions from the requirements of the water diversion act.
See General Statutes § 22a-377 (a) (setting forth statu-
tory exemptions);24 General Statutes § 22a-377 (b)
(empowering commissioner to adopt additional exemp-
tions ‘‘which would not by themselves or in combination
with each other have a substantial effect on the long-
range planning for and allocation of the water resources
of the state’’); Regs., Conn. State Agencies § 22a-377
(b)-1 (setting forth additional regulatory exemptions).
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 addi-
tional 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 infor-
mation that the department may request to decide
whether to grant a permit. First, § 22a-369 requires a
permit applicant to submit specific information to the
department, which, broadly characterized, relates to
the proposed diversion itself, the effect of the proposed
diversion on water resources, and the alternatives, if
any, to the proposed diversion. See General Statutes
§ 22a-369 (requiring information regarding, inter alia:
‘‘use of the diverted water’’; ‘‘description of the existing
water system where the diversion is proposed’’; ‘‘loca-
tions of withdrawals’’; ‘‘quantity, frequency and rate of
water the applicant proposes to divert’’; ‘‘length of time
for which the diversion permit is sought’’; information
about ‘‘public water supplies, water quality, waste-
water treatment needs, flood management, water-based
recreation, wetland habitats, waste assimilation, agri-
culture, fish and wildlife and low flow requirements’’;
‘‘[c]onservation measures . . . and the applicant’s
long-range water conservation plan’’).27 Second, § 22a-
373 addresses factors that the department must con-
sider in acting on a completed water diversion applica-
tion, which principally relate to water resources. See
General Statutes § 22a-373 (b) (requiring review of rele-
vant considerations, which include: ‘‘public water sup-
ply . . . safe yield of reservoir systems and reservoir
and groundwater development’’; ‘‘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’’; ‘‘long-
range planning, management, allocation and use of the
water resources of the state’’; ‘‘existing water condi-
tions’’; ‘‘effect, including thermal effect, on fish and
wildlife as a result of flow reduction, alteration or aug-
mentation’’; ‘‘navigation’’; ‘‘conservation’’).28 In addition
to these enumerated matters, the water diversion act
vests the department with a broad, residual grant of
authority to require the applicant to submit any informa-
tion that it ‘‘deems necessary to fulfill the purposes of
[the water diversion act]’’; General Statutes § 22a-369;
and to consider ‘‘any additional information that [it]
deems necessary to carry out the purposes of [the water
diversion act].’’ General Statutes § 22a-371 (a).
The water diversion act provides the department with
a variety of other powers to implement its provisions,
including enforcement powers. If any person or munici-
pality conducts activities that constitute a diversion
without a permit, the legislature empowered the depart-
ment 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. General
Statutes § 22a-376. The legislature also empowered the
department, after a permit has been issued, to ‘‘periodi-
cally investigate and review those diversions which are
taking place pursuant to a permit issued in accordance
with [the water diversion act]. If he determines that
there is any violation of the terms, limitations or condi-
tions of the permit, he may suspend or revoke said
permit in accordance with the provisions of Chapter
54 or may request the Attorney General to bring an
action to enjoin such violation in accordance with the
provisions of subsection (a) of section 22a-376.’’ Gen-
eral Statutes § 22a-375 (a); see Regs., Conn. State Agen-
cies § 22a-377 (c)-1 (b) and (c) (prohibiting holders
of permitted or registered diversions from increasing
amount of water to be diverted). In addition, § 22a-
376 (c) of the water diversion act expressly makes an
applicant subject to the criminal penalties of §§ 53a-
155 to 53a-157b, inclusive, if the applicant ‘‘knowingly
makes any false statement, representation or certifica-
tion in any application, record, report, plan, or other
document filed or required to be maintained . . . or
who falsifies, tampers with or knowingly renders inac-
curate any monitoring or method required to be main-
tained . . . .’’
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 defini-
tions of ‘‘diversion,’’ ‘‘waters,’’ and ‘‘instantaneous flow’’
in § 22a-367 empower the department to look beyond
the diversion identified by the applicant in its permit
application and examine, by way of §§ 22a-369 and 22a-
373, all aspects of the plaintiff’s activities that may
constitute diversions, which may include the plaintiff’s
excavation activities. We conclude that, even if we
assume, without deciding, that the plaintiff’s excavation
activities could constitute a diversion that is not
exempted from the permitting requirements; see foot-
note 21 of this opinion; the water diversion act generally
does not empower the department to request informa-
tion to determine the extent and environmental effects
of diversions other than those for which a permit is
sought.
Although the water diversion act defines a ‘‘[d]iver-
sion’’ 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) General Statutes § 22a-
367 (2); §§ 22a-369 and 22a-373 of the water diversion
act do not empower the department to request informa-
tion about ‘‘any diversion’’ or ‘‘all potential diversions.’’
Rather, the water diversion act empowers the depart-
ment to request and consider information about ‘‘the
diversion,’’ ‘‘the diverted water,’’ ‘‘withdrawals and dis-
charges of water the applicant proposes to divert,’’ ‘‘the
diversion permit’’; (emphasis added) General Statutes
§ 22a-369; and ‘‘the proposed diversion.’’29 (Emphasis
added.) General Statutes § 22a-373. In other words,
§§ 22a-369 and 22a-373 authorize the department to
request information from an applicant about the spe-
cific, proposed 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 for which the applicant has sought a permit.30
To construe the water diversion act, as the commis-
sioner has, to allow the department to request informa-
tion 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 §§ 22a-369 and 22a-373. See Buttermilk Farms, LLC
v. Planning & Zoning Commission, 292 Conn. 317,
330–31, 973 A.3d 64 (2009) (concluding that limiting
language—’’the land to be subdivided’’—prohibited zon-
ing commission from denying developer’s subdivision
application for failure to include off-site sidewalks
because to conclude otherwise ‘‘would, in effect, have
to read the limiting language of that provision out of
the statute . . . [and would extend power to the com-
mission] by construction beyond the fair import of the
language of the enabling statute or to include by implica-
tion that which is not clearly within the express terms
of that statute’’ [citations omitted; internal quotation
marks omitted]). It is a ‘‘basic tenet of statutory con-
struction that the legislature [does] not intend to enact
meaningless provisions. . . . [I]n construing statutes,
we presume that there is a purpose behind every sen-
tence, clause, or phrase used in an act and that no part
of a statute is superfluous.’’ (Internal quotation marks
omitted.) Felician Sisters of St. Francis of Connecticut,
Inc. v. Historic District Commission, 284 Conn. 838,
849–50, 937 A.2d 39 (2008).
That is not to say, however, that the department
would be constrained to accept the applicant’s charac-
terization of the diversion solely as it appears in the
permit application. The language granting the depart-
ment authority to request any information about a pro-
posed diversion that he or she deems necessary to fulfill
the purposes of the water diversion act; see General
Statutes § 22a-369; may reasonably be interpreted to
encompass information necessary to determine
whether an applicant’s characterization of the proposed
diversion is accurate and complete. Cf. Unistar Proper-
ties, LLC v. Conservation & Inland Wetlands Commis-
sion, supra, 293 Conn. 98–99 (wetlands commission
statutorily authorized to seek wildlife inventory to
determine impact of plaintiff’s activity not required to
credit plaintiff’s expert testimony as to lack of such
impact or to disprove plaintiff’s position in order to
obtain that inventory).
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 rea-
sonably 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 applica-
tion; the department would likely be entitled to request
information to ensure sufficient review of the submitted
application. These requests are reasonable interpreta-
tions 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’’; General Statutes
§ 22a-369 (3); and requires the department to consider,
before acting on a completed permit application, ‘‘[t]he
effect of the proposed diversion on existing and planned
water uses in the area affected’’ and ‘‘[t]he effect of the
proposed diversion on the existing water conditions
. . . .’’ General Statutes § 22a-373 (b) (2) and (5).31
The department’s authority to request information,
pursuant to §§ 22a-369 and 22a-373, about diversion
activity other than the diversions for which the plaintiff
has sought permits extends only to information neces-
sary for sufficient review of the applications—and
diversions—under review. This is the very hydraulic
relationship that the plaintiff claims the department
should be required to allege or establish before it may
request information about additional diversions, if any,
on the plaintiff’s properties. After all, the mere fact that
more than one diversion exists or is being created on
the same property does not make all diversions part of
the same water system, as in the previous example, or
render review of the additional diversions so necessary
in terms of evaluating the submitted application by ref-
erence to the relevant factors set forth in the water
diversion act such that the department cannot fairly
evaluate the submitted application.
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 inex-
tricable hydraulic connection to the plaintiff’s proposed
withdrawals, despite the plaintiff’s consistent position
that any such hydraulic connection was absent. More-
over, 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 juris-
diction over all activities that qualify as diversions pur-
suant 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 opin-
ion. 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 General Statutes § 22a-376.
Thus, in the context of the plaintiff’s specific applica-
tions 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 applica-
tion for the plaintiff’s proposed withdrawals, the depart-
ment may not rely on §§ 22a-369 and 22a-373 for
such authority.
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 §§ 22a-369 and 22a-373 provide authority
to request information about the plaintiff’s excavation
activities as an ‘‘effect’’ of the plaintiff’s proposed diver-
sions. Specifically, the commissioner claims that,
because §§ 22a-369 and 22a-373 authorize the depart-
ment to request information about the effect of the
plaintiff’s withdrawals of water, and because the plain-
tiff would be unable to excavate absent the use of the
diverted water to cool its machines, suppress dust, and
wash aggregate, the department may properly request
information about the plaintiff’s excavation activities as
an effect of the proposed diversion. The commissioner
further contends that §§ 22a-369 and 22a-373 authorize
it to request information about the environmental
effects of any activity facilitated or enabled by the with-
drawn, diverted water. The plaintiff responds that the
department’s authority to request information relating
to the effect of the proposed withdrawal is limited by
the enumerated items in each subsection of the water
diversion act addressing the ‘‘effect’’ of the diversion,
or matters related thereto that further the purpose of
the water diversion act, and that its excavation activities
do not fall within those parameters. We agree with
the plaintiff.
The ‘‘effect of the proposed diversion’’ is addressed
in the statutory scheme in two places. Section 22a-
369 (7) of the water diversion act first empowers the
department to request information about ‘‘[t]he effect
of the proposed diversion on public water supplies,
water quality, wastewater treatment needs, flood man-
agement, water-based recreation, wetland habitats,
waste assimilation, agriculture, fish and wildlife and
low flow requirements . . . .’’ Section 22a-373 of the
water diversion act then empowers the department to
consider, before taking action on a completed applica-
tion, information about ‘‘[t]he effect of the proposed
diversion’’ on enumerated considerations relating to
water resources. See General Statutes § 22a-373 (b) (1),
(2), (5), (6), and (7) (referencing the ‘‘effect’’ of the
proposed diversion).32 Sections 22a-369 and 22a-373
thus empower the department to request information
about the effect of the proposed diversion on some-
thing, specifically, water resources and other matters
related thereto within the scope of the purpose of the
water diversion act. Requiring an applicant to submit
such information enables the department to determine
whether a proposed diversion potentially could have
an adverse effect on those water resources or matters
related thereto, enumerated or otherwise, within the
scope of the purpose of the water diversion act. Indeed,
it is evident that the thrust of the water diversion act—
the permitting requirements, the reporting require-
ments, and the penalty provisions—is concerned with
changes in the flow of water that affect the quantity
and quality of water resources, and the activities and
users dependent on those resources. See General Stat-
utes § 22a-366 (‘‘the waters of Connecticut are a pre-
cious, finite and invaluable resource upon which there
is an ever increasing demand for present, new and com-
peting uses’’).
Under the facts of the present case, the department’s
reliance on the authority granted by §§ 22a-369 and 22a-
373 to request information about the plaintiff’s excava-
tion activities as an ‘‘effect of the proposed diversion’’
is misplaced for several reasons. First, the plaintiff’s
excavation activities are not a water resource or a mat-
ter related thereto; it is not similar to the enumerated
items upon which the effect of the diversion is to be
measured. See footnote 32 of this opinion. And even if
it were, the department does not seek to determine the
effect of the plaintiff’s proposed diversions, namely,
its withdrawals of water, on the plaintiff’s excavation
activities; instead, the department seeks to determine
the effect of the plaintiff’s excavation activities on envi-
ronmental resources.
Second, to the extent the commissioner claims that
the plaintiff’s excavation activities are, themselves, an
‘‘effect’’ of the withdrawals of water because such activ-
ities 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 interpre-
tation of cause and effect were reasonable, the legisla-
ture 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., General Stat-
utes § 22a-41 (a) (6) (requiring department, in carrying
out Inland Wetlands and Watercourses Act [wetlands
act], General Statutes § 22a-36 et seq., to consider
‘‘[i]mpacts of the proposed regulated activity on wet-
lands or watercourses outside the area for which the
activity is proposed and future activities associated
with, or reasonably related to, the proposed regulated
activity which are made inevitable by the proposed
regulated activity and which may have an impact on
wetlands or watercourses’’ [emphasis added]). If the
legislature had intended the water diversion act to con-
fer the authority to consider or regulate activities facili-
tated or enabled by a proposed diversion whose sole
relation to such diversion is the use of the diverted
water at any point during the facilitated activity, it cer-
tainly could have inserted language to that effect. Com-
pare General Statutes § 22a-41 (a) (6) (addressing under
wetlands act ‘‘future activities associated with, or rea-
sonably related to, the proposed regulated activity
which are made inevitable by the proposed regulated
activity’’), with General Statutes § 22a-369 (2) (requiring
diversion permit application to submit information on
‘‘use of diverted water’’). To interpret the water diver-
sion act as allowing the department to request informa-
tion about the effect of the excavation activities on
water resources or matters related thereto would effec-
tively result in an end run around the requirement that
the department first determine whether the excavation
activities are, themselves, diversions for which a permit
is required.33 In the absence of explicit language to that
effect, we will not presume that the legislature intended
the water diversion act to confer what would be almost
limitless authority. Cf. AvalonBay Communities, Inc.
v. Inland Wetlands Commission, 266 Conn. 150, 165,
832 A.2d 1 (2003) (‘‘[i]f we were to interpret the [inland
wetlands and watercourses] act as authorizing the
denial of a permit due to development in the upland
areas, the only consequence of which as it relates to
wetlands is the reduction in a wetland obligate species,
the commission’s jurisdiction would be limitless’’).
Third, the department’s interpretation of § 22a-369
appears in tension with its own regulation, which
requires it to evaluate the effect of the proposed diver-
sion under § 22a-369 (7) ‘‘using stream flows, where
applicable, with [a series of] recurrence intervals
. . . .’’ Regs., Conn. State Agencies § 22a-377 (c)-2 (a)
(2). The department does not purport to justify its
requests for information about the plaintiff’s excavation
activities as the means by which it intends to consider
stream flows as required by this regulation.34 Accord-
ingly, we conclude that the water diversion act does
not authorize the department’s requests for information
about the plaintiff’s excavation activities and the envi-
ronmental effects thereof as ‘‘effects’’ of the plaintiff’s
proposed diversions.
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 General Statutes § 22a-369; that grant of author-
ity cannot be read so broadly as to render the specific
grants of authority superfluous.35 Our construction of
the water diversion act tethers that authority to the
diversion at issue, its effects on water resources, and
those dependent on such resources, consistent with the
purposes of the water diversion act.
Although we conclude that the excavation activities
cannot be regulated as an ‘‘effect’’ of the proposed diver-
sions, we also are compelled to note that we do not
endorse the plaintiff’s view that the proposed diver-
sion’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 regula-
tion addressing a different, and very specific, subject
matter: mapping wells in stratified drift aquifers. See
Regs., Conn. State Agencies § 22a-354b-1 (a) (3).36
Although there is an isolated reference in a water diver-
sion regulation to that aquifer mapping regulation; see
Regs., Conn. State Agencies § 22a-377(c)-2 (a) (1); it
is clear that this single reference is not intended to
incorporate the area of influence metric into the water
diversion act as a universal substantive element. Rather,
it is intended to address the limited situation in which
a diversion might impact the boundaries of an area
subject to the aquifer mapping requirements. See Regs.,
Conn. State Agencies § 22a-377(c)-2 (a) (1) (‘‘[i]f the
proposed diversion involves a withdrawal of ground
water and can reasonably be expected to change the
boundaries of an area of contribution or recharge areas
of a well field as delineated on a Level A Map approved
under [General Statutes §] 22a-354d . . . the applicant
shall submit a revised Level A Map prepared in accor-
dance with section 22a-354b-1 of the Regulations of
Connecticut State Agencies’’). Simply put, there is no
basis to apply ‘‘area of influence’’ to diversions gener-
ally. Although the plaintiff contends that some physical
limitation must restrict the department’s authority,
whether area of influence or otherwise,37 we may not
engraft a limitation on the department’s authority that
is not so provided. See AvalonBay Communities, Inc.
v. Inland Wetlands Commission, supra, 266 Conn. 164
(‘‘[a]bsent such language by the legislature [in the pre-
sent act], this court cannot engraft amendments into
the statutory language’’ [internal quotation marks
omitted]).
Although the preceding analysis disposes of the par-
ties’ claims, because the trial court and the commis-
sioner 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 com-
missioner claims that Unistar Properties, LLC, sup-
ports 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 applica-
tions. The commissioner also claims that Unistar Prop-
erties, 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 proposi-
tion 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 infor-
mation required from the applicant. The question at
issue in that case was whether the applicant’s submis-
sion 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
to request the extent of information at issue. Indeed,
the plaintiff does not claim that its submission of infor-
mation to the department satisfies some other statutory
requirement that could divest the department of author-
ity it already has, but rather claims that the department
lacks the authority to request the information in the
first instance.
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 ques-
tion of what effect the proposed diversion has on water
resources and other matters related thereto, the depart-
ment 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 inven-
tory 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 commis-
sion to impose such a demand on an applicant’’ [empha-
sis in original]).39
Finally, in light of the procedural posture of the pre-
sent 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 depart-
ment’s authority to request information from the plain-
tiff 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 with-
drawals of water, the department’s attempts to regulate
the plaintiff’s excavation activities as diversions sepa-
rate and apart from the withdrawals for which the plain-
tiff 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 over-
lapping jurisdiction with the North Branford wetlands
agency and that, absent a specific exemption in the
water diversion act, the department may properly regu-
late 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-
ment’s October 21, 2008 letter indicated that at least
twelve acres of inland wetlands had been removed or
affected. Similarly, although the record does not indi-
cate the plaintiff’s current use of the areas at issue, the
plaintiff made an unchallenged representation in its
brief to this court that ‘‘the authorized work has long
since been carried out . . . .’’ In its October 21, 2008
letter, the department requested the following informa-
tion specific to the plaintiff’s North Branford facility
that it deemed ‘‘necessary to complete the application’’:
‘‘[a] wetland[s] mitigation plan to off-set the approxi-
mately [twelve] acres of inland wetlands that have been
destroyed by the post-1990 expansion of the quarry
. . . .’’ In its declaratory action, the plaintiff asked:
‘‘[w]hen an applicant for a water diversion permit
already has obtained a local wetlands permit for activi-
ties that are located on the diversion site but are hydrau-
lically 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?’’
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 autho-
rizes 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 typi-
cally provided to a local wetlands commission.’’ The
commissioner also ruled that the water diversion act
authorizes the department to regulate wetlands activi-
ties ‘‘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 per-
mits and, in essence, regulation of the activities pre-
viously 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 diver-
sion act automatically creates concurrent permitting
jurisdiction over wetlands. In response, the commis-
sioner claims that its request for a wetlands mitigation
plan was independently authorized by the water diver-
sion act notwithstanding any overlapping jurisdiction.
Because the plaintiff makes the same reference to
hydraulic relationship in its petition question; see part
IV A of this opinion; we again reframe the question
presented to become ‘‘whether the water diversion act
authorizes the department’s request for the wetlands
mitigation plan in its October 21, 2008 letter,’’ and
answer that question in the negative. We conclude that,
although the water diversion act authorizes the depart-
ment to request information about the wetlands on the
North Branford property, the department exceeded
such authority in requesting the wetlands mitigation
plan of the October 21, 2008 letter.
We begin with the statutory language. The water
diversion act authorizes the department to request and
consider information relating to wetlands resources.
Specifically, § 22a-369 (7) requires the applicant to sub-
mit information about ‘‘effect of the proposed diversion
on . . . wetlands habitats’’ and § 22a-373 (b) (2)
requires the department to consider, before acting on
a completed permit application, the ‘‘effect of the pro-
posed diversion on existing and planned water uses in
the area affected such as . . . wetland habitats . . . .’’
The commissioner points to these provisions as author-
izing the department to request information about the
altered wetlands in order to broadly perform an ‘‘[e]val-
uation of effects upon wetlands’’ and ‘‘wetlands
resources.’’
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 plain-
tiff’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 habi-
tats. 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 plain-
tiff 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 depart-
ment’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 informa-
tion about the effect of excavation activities on wet-
lands exceeds the authority granted by §§ 22a-369 and
22a-373 and constitutes a regulatory end run around
the requirement that the department determine, in the
first instance, that the plaintiff’s excavation activities
constitute diversions.
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 informa-
tion about the effect of these wetlands alterations on
wetlands resources. As discussed in part IV B of this
opinion, however, in the context of the permit review
process for the plaintiff’s proposed withdrawals of
water, the authority to request information about diver-
sion activities other than the plaintiff’s proposed with-
drawals of water is generally limited to requesting
information from the plaintiff that is necessary for
review of the application submitted, such as requesting
information properly within the scope of authority
granted by §§ 22a-369 and 22a-373 to determine whether
the plaintiff’s characterization of the diversions in the
application is accurate and complete. The department
does not contend that the plaintiff’s prior wetlands alter-
ations constituted a diversion implicating and affecting
the same water system as the plaintiff’s withdrawals
such that the department cannot fairly evaluate the
submitted withdrawal applications without review of
these alterations. See footnote 31 of this opinion. Nor
does the department claim entitlement to this mitigation
plan to determine whether the prior wetlands alter-
ations will, or did, affect the same water system as the
withdrawals. Indeed, unlike with respect to the first
question in the declaratory ruling, the department has
never challenged the plaintiff’s characterization of the
wetlands at issue as ‘‘hydraulically unrelated’’ to the
diversions for which the plaintiff sought in the North
Branford permit. The declaratory ruling itself makes no
attempt to link the wetlands to the requested withdraw-
als, but rather, to the excavation activities. Thus, it is
clear that there is no authority to use the permit process
for the proposed diversions to regulate the wetlands.
We therefore conclude that, in the context of the permit
review process for the plaintiff’s proposed withdrawals,
the department has exceeded its authority in requesting
a wetlands mitigation plan such as the one requested
by the department in its October 21, 2008 letter and we
therefore answer the reframed question in the
negative.40
VI
DELAY IN PROCESSING NPDES PERMIT
APPLICATION
Finally, the plaintiff claims that, with respect to its
North Branford facility, the trial court improperly
affirmed the commissioner’s conclusion that the depart-
ment 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 per-
mit application.
As discussed previously in this opinion, the plaintiff’s
North Branford facility requires the removal of a sub-
stantial amount of stormwater from a quarry. The plain-
tiff applied for a diversion permit for the withdrawal
of 2,000,000 gallons of water per day of stormwater
from the quarry and seeks an NPDES permit that will
allow it to discharge the 2,000,000 gallons of water per
day into an unnamed tributary to Cedar Pond. The
department administers both discharge and diversion
permits, the former pursuant to chapter 446i of the
General Statutes, which governs water resources, and
the latter pursuant to chapter 446k, which governs
water pollution control.41 The plaintiff’s current, though
lapsed, NPDES permit authorizes a monthly average
discharge of 400,000 gallons of water per day into that
pond, with a daily maximum discharge of 2,000,000
gallons per day; the plaintiff therefore seeks to renew
and modify its existing NPDES permit to match the
amount it wishes to divert.
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 haz-
ard 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 § 22a-
430-4 (d) (3) of the Regulations of the Connecticut State
Agencies, the department would not act ‘‘on the portion
of [the plaintiff’s NPDES permit] application in which
it requests an increase in its discharge flow until [the
plaintiff] has addressed the outstanding issues associ-
ated with the diversion permit application.’’
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 depart-
ment could properly delay processing the plaintiff’s
NPDES permit application because § 22a-430-4 (d) (3)
of the Regulations of Connecticut State Agencies
authorized the department to delay processing a com-
pleted NPDES permit application when a ‘‘related’’ per-
mit application is incomplete or may be denied. The
trial court affirmed the commissioner’s ruling and
agreed that the two permit applications were related
because, ‘‘[a]lthough the NPDES permit would autho-
rize the discharge of quarry water to wetlands and
watercourses downstream, the diversion of this water
must be authorized by a diversion permit.’’ (Emphasis
in original.)
Our resolution of this issue requires us to interpret
§ 22a-430-4 (d) (3) of the Regulations of Connecticut
State Agencies, the sole regulation upon which the
department relies for the authority to delay processing
the plaintiff’s NPDES permit application. See Vitti v.
Allstate Ins. Co., 245 Conn. 169, 178, 713 A.2d 1269
(1998) (‘‘[o]ur rules of statutory construction apply to
administrative regulations’’ [internal quotation marks
omitted]).42 We begin with the pertinent regulatory lan-
guage. Section 22a-430-4 generally sets forth the proce-
dures and criteria for issuing water discharge permits.
Section 22a-430-4 (c) sets forth the requirements for
those discharge permit applications. Section 22a-430-4
(c) (18) specifically requires NPDES permit applica-
tions to include a listing of all permits approvals
received or applied for under various state and federal
programs. Section 22a-430-4 (d) addresses preliminary
review of the discharge permit applications. Section
22a-430-4 (d) (3) specifically provides: ‘‘The complete-
ness of an application shall be judged independently of
the status of any other permit application or permit for
the same facility or activity. The department may delay
processing a completed application if it is associated
with another application which is incomplete or which
may be denied.’’
Although the parties focus their discussion on
whether the plaintiff’s NPDES permit application is
‘‘associated with’’ its water diversion permit applica-
tion, in our view, the scope of the department’s author-
ity under this regulation is principally dictated by the
regulatory definition of ‘‘application,’’ which is
expressly incorporated into § 22a-430-4 (d) (3) of the
Regulations of Connecticut State Agencies. See Regs.,
Conn. State Agencies § 22a-430-3 (a) (1).43 Section 22a-
430-6 (b) (1) of the Regulations of Connecticut State
Agencies defines an ‘‘[a]pplication’’ as ‘‘completed
forms prescribed by the [c]ommissioner for applying
for issuance, reissuance, modification or transfer of an
individual permit under [General Statutes §] 22a-430
. . . or registering for a general permit under [General
Statutes §] 22a-430b . . . including any additions, revi-
sions, or modifications thereto.’’ General Statutes
§§ 22a-430 and 22a-430b, which fall within the chapter
of the General Statutes pertaining to water pollution
control, govern permits for the discharge of water, sub-
stance, or materials into the waters of the state, includ-
ing NDPES permits required under the clean water act.
Therefore, the regulatory definition of ‘‘application’’ is
limited to applications for discharge permits governed
by General Statues §§ 22a-430 and 22a-430b and implic-
itly excludes applications for permits issued pursuant
to other environmental programs, such as applications
for permits issued pursuant to the water diversion act.
Accordingly, unless other language in § 22a-430-4 (d)
(3) of the Regulations of Connecticut State Agencies
indicates that ‘‘application’’ must be construed differ-
ently than as it is defined in § 22a-430-6 (b) (1) of the
Regulations of Connecticut State Agencies, we must
construe that term as meaning an application for a
discharge permit. Absent a broader construction, the
department clearly would lack authority to delay pro-
cessing a completed discharge permit application due
to the status of a nondischarge permit application such
as the diversion permit application at issue in the pre-
sent case.
The parties agree that the references in the first sen-
tence of § 22a-430-4 (d) (3) of the Regulations of Con-
necticut State Agencies to the ‘‘completeness of an
application’’ and in the second sentence to delaying the
processing of ‘‘a completed application’’ both refer to
a discharge permit application—in the present case,
the NPDES permit application. Our inquiry therefore
centers on the mandate that the department judge the
completeness of that discharge permit application
‘‘independently of the status of any other permit appli-
cation or permit for the same facility or activity’’ and
the authority vested in the department to delay pro-
cessing a completed discharge application ‘‘if it is asso-
ciated with another application which is incomplete
or which may be denied.’’ (Emphasis added.) Regs.,
Conn. State Agencies § 22a-430-4 (d) (3). In our view, it
is significant that the regulation distinguishes between
‘‘any other permit application or permit for the same
facility or activity’’ and ‘‘another application.’’ As to the
former, the phrase ‘‘any other permit application’’ could
be construed broadly to mean more than simply a dis-
charge permit application because limiting it as such
would render superfluous the word ‘‘permit,’’ as the
definition of application already means a permit appli-
cation. Instead, ‘‘any other permit application’’ reason-
ably could be construed to encompass any type of
permit application, whether an application for a dis-
charge permit or other permit such as a water diversion
permit, for the same facility or activity. In the particular
context of NPDES applications, this construction seems
logical given the requirement that the applicant list vari-
ous other permits for which it has applied or received
approval. Thus, the first sentence would preclude the
department from judging the completeness of the
NPDES permit application based on the status of the
plaintiff’s water diversion permit application for the
North Branford facility.44
By contrast to the phrase ‘‘any other permit applica-
tion’’ in the first sentence of § 22a-430-4 (d) (3) of the
Regulations of Connecticut State Agencies, the second
sentence empowers the department to delay processing
a completed discharge application if it is associated
with ‘‘another application’’ that is incomplete or that
may be denied. We presume that the use of different
modifiers of ‘‘application’’ was intended to import a
different meaning. See C. R. Klewin Northeast, LLC v.
State, 299 Conn. 167, 177, 9 A.3d 326 (2010) (‘‘[t]he use
of the different terms . . . within the same statute sug-
gests that the legislature acted with complete aware-
ness of their different meanings . . . and that it
intended the terms to have different meanings’’ [internal
quotation marks omitted]); Moon v. Zoning Board of
Appeals, 291 Conn. 16, 22, 966 A.2d 722 (2009) (applying
same rule of construction to regulations). A common
dictionary definition of ‘‘another’’ is ‘‘an additional one
of the same kind; one more’’; Webster’s Third New
International Dictionary (2002); which does not indicate
a different type or category of application, but rather
more of the same type or category. See Vitti v. Allstate
Ins. Co., supra, 245 Conn. 178 (‘‘[i]n the absence of
other statutory [or regulatory] guidance, we may appro-
priately look to the meaning of the word[s] as commonly
expressed in the law and in dictionaries’’). Thus, by
modifying ‘‘application’’ with the word ‘‘another,’’ the
department did not signal a clear intent to depart from
the regulatory definition of ‘‘application,’’ which refers
only to discharge permit applications. If the department
had wished to depart from the regulatory definition of
‘‘application’’ in the second sentence of § 22a-430-4 (d)
(3), it could have employed the same explicit language
it had used in the first sentence. See Regs., Conn. State
Agencies § 22a-430-4 (d) (3) (‘‘any other permit appli-
cation or permit for the same facility or activity’’
[emphasis added]). Accordingly, the reference to
‘‘another application’’ in the second sentence of § 22a-
430-4 (d) (3) refers to an additional discharge permit
application. As such, the department could delay pro-
cessing the plaintiff’s NPDES permit application if there
were another discharge permit application pending
before it that was associated with the NPDES permit
application. The department could not, however, delay
that permit approval due to the plaintiff’s pending water
diversion permit application.
Our interpretation of § 22a-430-4 (d) (3) of the Regula-
tions of Connecticut State Agencies makes logical sense
when viewing the regulatory scheme in its entirety. It
seems reasonable that, for example, multiple discharges
into the same water system by the same applicant could
be associated with each other. Construing the regula-
tion as empowering the department to delay processing
a completed discharge permit application that is ‘‘asso-
ciated with’’ another discharge permit application pre-
vents an applicant with multiple pending discharge
permit applications from being able to compel the
department to make piecemeal decisions on facets of
the applicant’s overall discharge activity over which
the department properly has the same or similar water
pollution concerns. Allowing the department to delay
processing a completed discharge permit application if
it is associated with a different type of permit applica-
tion, such as a water diversion permit application, how-
ever, would risk arbitrary enforcement and allow the
department to hold up a properly complete and perhaps
meritorious discharge permit application merely
because a different permit application, administered
pursuant to an entirely different environmental program
and implicating an entirely different set of environmen-
tal concerns, is incomplete or may be denied. While we
acknowledge that there is a logical relationship between
the diversion and the subsequent discharge of the same
water and that such a relationship could justify a regula-
tory scheme under which the department could con-
sider permit applications for these actions
concurrently, the regulatory scheme as it currently
exists does not allow the department to do so.
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 con-
ferred to it by the water diversion act, not the regula-
tions implementing the clean water act. Discharges
authorized pursuant to § 22a-430 are exempted from
the requirements of the water diversion act. See General
Statutes § 22a-377 (a) (3). To construe § 22a-430-4 (d)
(3) of the Regulations of Connecticut State Agencies
as the commissioner has in the present case would yield
a construction that is in tension with this exemption
because it would allow the department to accomplish
indirectly—regulation of the environmental effects of
NPDES discharges pursuant to the water diversion
act—what it could not accomplish directly. See foot-
note 24 of this opinion.
Because the department does not claim authority to
delay processing the plaintiff’s NPDES permit applica-
tion under any source other than § 22a-430-4 (d) (3)
of the Regulations of Connecticut State Agencies, and
because ‘‘an administrative body must act strictly within
its statutory authority’’ and ‘‘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, supra, 282 Conn. 654; we conclude
that § 22a-430-4 (d) (3) does not empower the depart-
ment to delay processing the plaintiff’s NPDES permit
application due to outstanding matters related to the
plaintiff’s diversion permit application for the North
Branford site.
The judgment is reversed and the case is remanded
with direction to sustain the plaintiff’s appeal. The com-
missioner’s cross appeal is dismissed as moot.
In this opinion the other justices concurred.
1
We note that, subsequent to the events underlying the present appeal,
the department merged into a new agency, the Department of Energy and
Environmental Protection. See Public Acts 2011, No. 11-80, §§ 1, 55.
2
We note that several provisions of the water diversion act, namely,
General Statutes §§ 22a-366, 22a-367, 22a-368a, 22a-373 and 22a-377, have
been amended by our legislature since the events underlying the present
appeal. See Public Acts 2003, No. 03-141, § 1; Public Acts 2004, No. 04-185,
§ 2; Public Acts 2005, No. 05-205, § 15; Public Acts 2010, No. 10-32, § 88;
Public Acts 2011, No. 11-80, § 1. These various amendments have no bearing
on the merits of the present appeal. Consequently, for the sake of simplicity,
we refer to the current revision of these statutes.
3
As we explain subsequently in this opinion, the trial court remanded the
case to the commissioner for further factual findings on one of the questions
raised in the petition for a declaratory ruling and dismissed the plaintiff’s
appeal as to the other two questions. The plaintiff appealed from the judg-
ment of the trial court to the Appellate Court. The commissioner then filed
a cross appeal regarding the trial court’s authority to issue the remand order.
We transferred the appeal and cross appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1. Because we reverse the
judgment of the trial court and remand the case with direction to sustain
the plaintiff’s appeal as to all three questions, we decline to address the
propriety of the trial court’s remand order and dismiss the commissioner’s
cross appeal as moot.
4
See footnote 2 of this opinion.
5
See footnote 2 of this opinion.
6
See footnotes 2 and 24 of this opinion.
7
See footnote 27 of this opinion.
8
See footnotes 2 and 28 of this opinion.
9
See footnote 2 of this opinion.
10
The plaintiff also submitted technical documentation including the rate,
amount, and frequency of the proposed withdrawal of water throughout the
length of the permit sought; a description of the need for the diversion; a
statement regarding the necessity for wildlife and fish habitat mitigation; a
hydrogeologic report that describes the surrounding water supply system,
any aquifer systems, sensitive resources in the area, calculations of consump-
tive use of the water, and area of influence calculations; topographic maps
with the regulated activity or project site outlined or pinpointed, as appro-
priate, as well as any designated wetlands on site; an environmental report
that describes existing ecological conditions at the site adjacent to the water
withdrawals, as well as the wildlife habitat characteristics of those areas,
any existing upland and wetland ecology, and the short- and long-term effects
of the proposed withdrawals on any wetlands or uplands; an assessment of
alternatives to the withdrawal; a long range water conservation plan; plans
and drawings; and other site-specific items.
11
As we explain subsequently in this opinion, ‘‘area of influence’’ is not
a term used in the water diversion act, but rather is a term of art defined
in a regulation promulgated pursuant to General Statutes § 22a-354b, Con-
necticut’s aquifer mapping statute. See footnote 12 of this opinion.
12
The plaintiff claimed that ‘‘the physical water diversion and its area of
influence constitutes a much smaller percentage of the overall property’’
than what the department claimed, disagreeing with the department’s request
for information ‘‘regarding the entire property on which [the plaintiff] con-
ducts any extraction that includes a regulated diversion . . . .’’ (Emphasis
omitted.) Section 22a-354b-1 (a) (3) of the Regulations of Connecticut State
Agencies implements Connecticut’s aquifer mapping statute, General Stat-
utes § 22a-354b, and defines ‘‘[a]rea of influence’’ as ‘‘the land area that
directly overlies and has the same horizontal extent as the part of the water
table or other potentiometric surface that is perceptibly lowered by the
withdrawal of water. The area of influence delineated by the use of modeling
shall be that area of land in which the water table or potentiometric surface
is lowered by at least 0.5 feet.’’
The plaintiff asserted that, under a proper interpretation of the depart-
ment’s authority, in which the ‘‘effect of the proposed diversion’’ would be
limited to the ‘‘area of influence’’ of each withdrawal; see footnote 11 of
this opinion; it would need to provide comprehensive environmental infor-
mation for only 61.53 acres, with all but one diversion’s area of influence
limited solely to the area of the basin itself. Under the department’s interpre-
tation, in which the ‘‘effect of the proposed diversion’’ would extend to the
proposed limits of the plaintiff’s excavation activities for the next twenty-
five years, the plaintiff would need to provide such information for, in
essence, the entire extent of its properties, which constitutes over 1900 acres.
13
See, e.g., General Statutes §§ 22a-38 (13) and 22a-40 (a) (1) (defining
‘‘[r]egulated activity’’ in inland wetlands statute to include excavation); Gen-
eral Statutes § 7-148 (c) (8) (C) (relegating authority to regulate excavation
to municipalities); General Statutes § 8-12 (authorizing zoning enforcement
for zoning violations relating to grading of land).
14
This information included: another hydrogeologic and hydrologic
impacts analysis; an inventory of potentially impacted resources in the areas
defined by the impacts analysis; a description of water quality, wastewater
treatment needs/waste assimilation, flood management, water based recre-
ation, wetland and wildlife habitat, and short-term and long-term cumulative
impacts, buffer areas, a natural diversity database review, and low flow
requirements; and a description of the plaintiff’s development plans and
associated controls, even though ‘‘the end use of the property is unknown.’’
15
Specifically, the department requested submission of revised site plans
for all five of the plaintiff’s sites that incorporated: ‘‘[t]he delineated bound-
aries of inland wetlands and watercourses for the existing limits of the
processing and excavation areas and any areas proposed to be disturbed
for the duration of the permit’’; ‘‘[t]he location of the [Federal Emergency
Management Agency] floodplain and floodway and the elevation contour of
the base flood based on the information provided by the National Flood
Insurance Program’’; ‘‘[e]xisting topography within the current limits of the
processing and excavation areas and proposed topography for any areas of
expansion for the duration of the permit’’; ‘‘[t]he location and extent of
buffer areas provided to protect inland wetlands and watercourses’’ with
a recommended minimum wetland buffer of 100 feet; ‘‘[a]n erosion and
sedimentation control plan . . . for the existing disturbed areas and any
areas proposed to be disturbed for the duration of the permit’’; and ‘‘[a]de-
quate stormwater control measures . . . for the existing disturbed areas
and any areas proposed to be disturbed for the duration of the permit.’’
The department further requested ‘‘hydraulic and hydrologic’’ reports for
all five sites demonstrating that: ‘‘the hydraulic aspects of the project sites
have been properly designed within accepted criteria, provided for in the
statutes, regulations, and engineering practice’’; ‘‘the project sites, specifi-
cally 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.’’
Additionally, the department noted that if expansion of the plaintiff’s
processing and excavation areas proposed for the duration of the permits
would encroach into the delineated inland wetlands and watercourses, the
plaintiff would be required to submit: ‘‘[a]quatic and vegetation habitat
surveys and assessments of the inland wetlands and watercourses to be
impacted’’; ‘‘[a] functions and values assessment of the inland wetlands
and watercourses to be impacted’’; ‘‘[a]n assessment of the impacts to the
functions and values of the affected inland wetland and watercourses’’; and
‘‘[a]n inland wetland[s] and watercourses mitigation plan which proposes
measures to [offset] assessed impacts.’’
16
Specifically, the department requested ‘‘[a] channel and crossing
improvements plan, which provides for safe conveyance of the proposed
[two million gallons per day] quarry discharge and a [twenty-five] year storm
flow from the quarry outlet downstream to Cedar Lake’’; and ‘‘[a] plan to treat
the quarry discharge to be consistent with the [Environmental Protection
Agency] approved [total maximum daily load] for Cedar and Linsley Ponds,
which limits the quarry discharge to a phosphorus load of 28 [kilograms
per year] or 2.33 [kilograms per month].’’
17
While the plaintiff’s NPDES renewal application has been pending, the
parties have maintained the status quo and the plaintiff has continued its
discharge of quarry water pursuant to the terms of the original NPDES
permit.
18
For reasons not relevant to this appeal, the plaintiff subsequently with-
drew its petition and, thereafter, filed a revised petition that was substantially
unchanged from the original petition. This procedural distinction does not
alter our analysis. In the interest of simplicity, all references in this opinion
to the plaintiff’s petition will be to the revised petition dated September
2, 2009.
19
The parties appear to use the terms ‘‘jurisdiction’’ and ‘‘authority’’ some-
what interchangeably. This court has recently attempted to clarify these
distinct, though related, concepts in In re Jose B., 303 Conn. 569, 573–80,
34 A.3d 975 (2012). Nevertheless, we will adhere to the parties’ use of the
terms when describing their claims, though we will attempt to maintain the
clarity of these distinct concepts in our reasoning. We note, however, that
the issues raised in the first two questions presented by the present case are
more properly characterized as questions as to whether the commissioner
exceeded her authority in requesting information, not whether the commis-
sioner has jurisdiction over activities that properly fall within the definition
of a diversion.
20
The trial court’s remand appears to have been prompted by the commis-
sioner’s discussion about reframing the first petition question in that the
question ‘‘lack[ed] sufficient context to provide an answer applicable to the
[plaintiff’s] factual situation . . . .’’
21
In connection with its remand, the trial court noted: ‘‘If the plaintiff
concludes that the diversion sites, as designated, exceed the commissioner’s
authority, it may return to the court for further argument.’’ That comment
may have been directed to the plaintiff’s argument that the excavations
were not subject to the permitting requirements because they fell under a
statutory exemption, an argument that the trial court declined to address
in the administrative appeal because the plaintiff’s petition had not asked
about the applicability of any exemption.
22
The record contains only one final decision involving a water diversion
permit, although the affidavit attaching the final decision explains its inclu-
sion only in that the department applied the state’s Endangered Species
Act, General Statutes § 26-310 et seq., to state agencies issuing any permit.
This final decision does not demonstrate the department’s consistent inter-
pretation of the water diversion act to request information in a manner
similar to its October 21, 2008 letter; instead, it discusses myriad issues
pertaining to four different permits and, at best, demonstrates the depart-
ment’s interpretation of General Statutes § 26-310 (d), which is not at issue
in the present case.
The record also contains an internal memorandum from the director of
the department’s inland water resources division in 1993 to the department’s
office of adjudications regarding the department’s authority to consider,
pursuant to the water diversion act, indirect or secondary impacts to wet-
lands of a proposed activity. The memorandum states: ‘‘In order to meet
the broad-based mandate put forth in the legislative findings section of the
[water diversion act, § 22a-366], the department necessarily must consider
direct, secondary, cumulative and indirect effects of the activities which it
is considering authorizing . . . includ[ing] both the effects resulting from
the excavation and filling of wetlands required to accomplish the relocation
of the subject watercourse [in a particular application] and from the filling
of wetlands for the [proposed] construction . . . .’’ Although the memoran-
dum generally supports the department’s contention that it has requested
a broad array of information in considering a diversion permit application,
the memorandum is an internal document that does not amount to a formal
articulation of the department’s interpretation of the water diversion act.
See Sarrazin v. Coastal, Inc., supra, 311 Conn. 611 n.20.
23
The plaintiff has never contended that the case should be remanded to
the commissioner because the commissioner failed to rule on the question
presented. Indeed, even the plaintiff reframed the first question in its brief
to this court: ‘‘[t]he primary issue in this case, clearly presented in [the
plaintiff’s] site-specific and factually detailed 2009 petition, is whether [the
department’s] October 2008 demand was authorized by the [water] [d]iver-
sion [a]ct in light of: (1) the specific facts of [the plaintiff’s] facilities, opera-
tions, and water use; (2) which water uses at [the plaintiff’s] facilities require
a diversion permit, and which are exempt under the [water diversion] [a]ct
or its regulations; and—not to be overlooked—(3) the information that [the
plaintiff] had already submitted to [the department] about its water use and
diversions prior to the agency’s 2008 demand.’’ (Emphasis omitted.)
We note that a declaratory judgment action must not be used as a ‘‘conve-
nient route for procuring an advisory opinion on moot or abstract questions
. . . .’’ (Internal quotation marks omitted.) Milford Power Co., LLC v. Alstom
Power, Inc., 263 Conn. 616, 625, 822 A.2d 196 (2003).
24
Those exemptions include, but are not limited to, ‘‘the maximum with-
drawal of [50,000] gallons of surface water during any twenty-four-hour
period . . . discharges [of water] permitted under the provisions of [Con-
necticut’s implementation of the clean water act, which include discharges
pursuant to NPDES permits] . . . a storm drainage system which collects
the surface water runoff of an area of less than [100] acres . . . water for
fire emergency purposes . . . roadway crossings or culverts which allow
for continuous flow or passage of an existing watercourse . . . [and] diver-
sions directly related to routine maintenance and emergency repairs of dams
. . . .’’ General Statutes § 22a-377 (a).
25
Section 22a-368a (c) requires reporting of current operating data for
certain diversions, including ‘‘the location, capacity, frequency and rate of
withdrawals or discharges [of water] . . . .’’ The department’s website indi-
cates that a standard permit provision for all consumptive diversions—as
opposed to nonconsumptive diversions—has been the required filing of
annual water diversion reports that state the daily usage of water for each
diversion. See Department of Energy and Environmental Protection, ‘‘Water
Diversion Reporting,’’ (last modified January 15, 2015), available at http://
www.ct.gov/deep/cwp/view.asp?a=2720&q=325638 (last visited July 8, 2015).
General Statutes § 22a-375 (b) required the commissioner to deliver a report
to the General Assembly in 2000 that included an inventory of all registered
diversions, their withdrawal quantities, and their planned usages.
26
The commissioner may waive public hearings on an application only if
he or she has determined that the specific, proposed diversion: ‘‘(1) is
necessary, (2) will not significantly affect long-range water resource manage-
ment or the environment, and (3) will not impair proper management and
use of the water resources of the state . . . .’’ General Statutes § 22a-371 (f).
27
The applicant must submit information which includes, but is not limited
to: ‘‘(1) [t]he need for the diversion; (2) [t]he 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) [t]he locations of withdrawals and
discharges of water the applicant proposes to divert; (5) [t]he quantity,
frequency and rate of water the applicant proposes to divert; (6) [t]he length
of time for which the diversion permit is sought; (7) [t]he effect of the
proposed diversion on public water supplies, water quality, waste-water
treatment needs, flood management, water-based recreation, wetland habi-
tats, waste assimilation, agriculture, fish and wildlife and low flow require-
ments; (8) [t]he alternatives, if any, to the proposed diversion including a
study of cost factors, feasibility and environmental effects of such alterna-
tives; (9) [c]onservation 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 . . . [that includes]
(A) [t]he identification of and cost effectiveness of distribution system reha-
bilitation to correct sources of lost water; (B) measures which encourage
proper maintenance and water conservation; (C) a public information pro-
gram to promote water conservation, including industrial and commercial
recycling and reuse and (D) contingency measures for limiting water use
during seasonal or drought shortages . . . .’’ General Statutes § 22a-369.
28
The commissioner must consider factors including, but not limited to:
‘‘(1) [t]he effect of the proposed diversion on related needs for public water
supply including existing and projected uses, safe yield of reservoir systems
and reservoir and groundwater development; (2) [t]he effect of the proposed
diversion on existing and planned water uses in the area affected such as
public water supplies, relative density of private wells, hydropower, flood
management, water-based recreation, wetland habitats, waste assimilation
and agriculture; (3) [c]ompatibility of the proposed diversion with the poli-
cies and programs of the state of Connecticut, as adopted or amended,
dealing with long-range planning, management, allocation and use of the
water resources of the state . . . (5) [t]he effect of the proposed diversion
on the existing water conditions, with due regard to watershed characteriza-
tion, groundwater availability potential, evapotranspiration conditions and
water quality; (6) [t]he effect, including thermal effect, on fish and wildlife
as a result of flow reduction, alteration or augmentation caused by the
proposed diversion; (7) [t]he effect of the proposed diversion on navigation;
(8) [w]hether the water to be diverted is necessary and to the extent that
it is, whether such water can be derived from other alternatives including,
but not limited to, conservation; [and] (9) [c]onsistency of the proposed
diversion with action taken by the Attorney General . . . .’’ General Statutes
§ 22a-373 (b).
Section 22a-373 (b) also requires the commissioner to consider limited
factors not directly relating to water resources. See General Statutes § 22a-
373 (b) (requiring consideration of ‘‘[t]he relationship of the proposed diver-
sion to economic development and the creation of jobs’’ and ‘‘[t]he interests
of all municipalities which would be affected by the proposed diversion’’).
29
The parties do not claim that the prospective nature of the word ‘‘pro-
posed’’ in the water diversion act prevents its application to the plaintiff’s
existing withdrawals of water. This prospective language predated enact-
ment of the amnesty provisions of § 22a-368a that were meant to encourage
submission of permit applications for existing diversions. The legislature
did not change this prospective language after enactment of § 22a-368a.
30
That the water diversion act requires an applicant to submit a specified
fee depending on the amount and type of use; see General Statutes § 22a-
372 (e) (setting forth fee schedule for applications); and, even after a permit
has been issued, continues to require differing fees depending on the type
of use; see General Statutes § 22a-379 (requiring payment of an annual
fee by holders of consumptive diversion permits but not by holders of
nonconsumptive diversion permits); supports the conclusion that the water
diversion act does not grant blanket authority to review any or all diversion
activities during the permit review process for an application for a specific
diversion activity.
31
Indeed, the language of the water diversion act may reasonably be
interpreted to empower the department to request information about activity
not proposed in a submitted application in other situations, such as to
determine the accuracy of the applicant’s characterization of the diversion
as that information would relate to §§ 22a-369 and 22a-373. If, for example, an
applicant sought a permit for a consumptive diversion but was inadvertently
incorrect about the amount of water the applicant would consume, the
department would not be bound by the applicant’s determination as to the
amount of water the applicant would consume. See General Statutes § 22a-
369 (5) (‘‘quantity . . . of water the applicant proposes to divert’’). Or, if
an applicant sought a permit for a consumptive diversion, but the diversion
activity would more properly be characterized as nonconsumptive, the
department would not be bound to request information about the proposed
diversion as if it conclusively were a consumptive diversion. See General
Statutes § 22a-369 (2) (‘‘use of the diverted water’’).
32
See General Statutes § 22a-369 (7) (‘‘effect of the proposed diversion
on public water supplies, water quality, waste-water treatment needs, flood
management, water-based recreation, wetland habitats, waste assimila-
tion, agriculture, fish and wildlife and low flow requirements’’ [emphasis
added]); General Statutes § 22a-373 (b) (1) (‘‘effect of the proposed diversion
on related needs for public water supply including existing and projected
uses, safe yield of reservoir systems and reservoir and groundwater devel-
opment’’ [emphasis added]); General Statutes § 22a-373 (b) (2) (‘‘effect of
the proposed diversion on existing and planned water uses in the area
affected such as public water supplies, relative density of private wells,
hydropower, flood management, water-based recreation, wetland habitats,
waste assimilation and agriculture’’ [emphasis added]); General Statutes
§ 22a-373 (b) (5) (‘‘effect of the proposed diversion on the existing water
conditions, with due regard to watershed characterization, groundwater
availability potential, evapotranspiration conditions and water quality’’
[emphasis added]); General Statutes § 22a-373 (b) (6) (‘‘effect, including
thermal effect, on fish and wildlife as a result of flow reduction, alteration
or augmentation caused by the proposed diversion’’ [emphasis added]);
General Statutes § 22a-373 (b) (7) (‘‘effect of the proposed diversion on
navigation’’ [emphasis added]).
33
After that threshold determination is made by the department, the plain-
tiff could submit an application for such diversion or the department could
elect to bring an enforcement action pursuant to § 22a-376.
34
This regulation, requiring technical analysis of, for example, ‘‘seven-day
ten-year, seven-day two-year, thirty-day two-year, and annual average flows;
[and] for high flows: peak flows corresponding to the probable maximum
flood, half probable maximum flood, and 500-year, 100-year, [fifty]-year,
[ten]-year, and [two]-year flood events and average annual flows’’; Regs.,
Conn. State Agencies § 22a-377 (c)-2 (a) (2); lends support to the plaintiff’s
position that the information sought to evaluate the ‘‘effect of the proposed
diversion on public water supplies, water quality, waste-water treatment
needs, flood management, water-based recreation, wetland habitats, waste
assimilation, agriculture, fish and wildlife and low flow requirements’’ in
§ 22a-369 (7) must have some hydraulic relationship to the proposed
diversion.
35
In a similar vein, the commissioner claims by analogy that, because its
jurisdiction is only limited to the extent that the department determines
that any of the plaintiff’s activities no longer have an impact ‘‘upon ‘waters’
or water-related resources’’ or result in ‘‘alterations and modifications to
the waters of the state,’’ its authority must also encompass the plaintiff’s
excavation activities because they will change topography and watershed
of the plaintiff’s properties ‘‘in space and time due to the quarrying operation
[which], relating to the waters of the state, [is] precisely what diversions
are about—changes in the water regime . . . .’’ While this rationale may
demonstrate that the excavation may be a diversion subject to the permitting
requirements and therefore within the jurisdiction of the department, it does
not demonstrate that the department properly exercises authority over such
activities insofar as there may not be a hydraulic nexus between the proposed
diversions and the excavation activities.
36
See footnote 12 of this opinion (defining ‘‘area of influence’’ in § 22a-
354b-1 (a) (3) of the Regulations of the Connecticut State Agencies, entitled
‘‘Regulations for Mapping Wells in Stratified Drift Aquifers to Level A
Standards’’).
37
Specifically, the plaintiff claims that the department’s jurisdiction should
be defined physically because, after the water diversion act broadly encom-
passes most activities, the exemptions of § 22a-377 state volumetric and
other physical criteria that define what diversions are exempted from the
water diversion act, such as the exemption for withdrawals of water that
do not exceed 50,000 gallons of water during any twenty-four hour period.
General Statues § 22a-377 (a) (1). If the exemptions physically delineate the
department’s jurisdiction, then, by analogy, the department’s authority to
request information relating to a diversion should also be physically deline-
ated, because failure to do so, according to the plaintiff, would be ‘‘at odds
with the facts that each regulated diversion is a readily measurable and
identifiable activity that occurs at a discrete location.’’
38
In Unistar Properties, LLC v. Conservation & Inland Wetlands Com-
mission, supra, 293 Conn. 95, the plaintiff sought approval of a proposed
subdivision on lands adjacent to wetlands from a municipal wetlands com-
mission. Although the defendant was statutorily required to consider the
effect of the plaintiff’s subdivision on wetlands habitats in and around
wetlands or watercourses outside the area for which the activity was pro-
posed, it could not deny or condition an application for a regulated activity
in an area outside wetlands or watercourses ‘‘ ‘on the basis of an impact
or effect on aquatic, plant, or animal life unless such activity will likely
impact or affect the physical characteristics of such wetlands or water-
courses.’ ’’ (Emphasis added.) Unistar Properties, LLC v. Conservation &
Inland Wetlands Commission, supra, 293 Conn. 111, quoting General Stat-
utes § 22a-41 (d). The plaintiff refused to provide the commission with a
wildlife inventory for the nonwetlands portions of its property and, instead,
the plaintiff presented expert testimony that its nonwetlands activities would
not affect the physical characteristics of the wetlands on its properties. Id.,
98. The defendant denied the plaintiff’s application as incomplete on the
ground that it required information to address concerns about wetlands
impacts raised during the hearing. Id., 99.
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.
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.
39
We do not discuss whether each individual item in the October 21,
2008 letter is properly requested by the department pursuant to the water
diversion act. The parties did not brief the authority granted by the water
diversion act as to each item, but rather disputed the department’s authority
to regulate the plaintiff’s excavation activities, generally.
40
In light of our conclusion, we need not decide whether disturbance of
wetlands pursuant to a duly issued municipal wetlands permit also requires
a water diversion permit and, if so, what powers are properly exercised by
the department pursuant to the water diversion act in light of any overlapping
jurisdiction with local wetlands commissions. See Sams v. Dept. of Environ-
mental Protection, supra, 308 Conn. 391–96. Nor do we decide whether it
is feasible or proper to exercise the powers conferred by the water diversion
act to activities that concluded decades earlier. See footnote 29 of this
opinion.
41
As discussed previously in this opinion, NPDES permits are discharge
permits issued by the department pursuant to 33 U.S.C. § 1342 and General
Statutes § 22a-430, which ‘‘require any person or municipality to obtain a
permit prior to discharging any substance into the waters of the United
States or Connecticut. In Connecticut, the department is responsible for
issuing both federal and state discharge permits.’’ (Internal quotation marks
omitted.) Burton v. Commissioner of Environmental Protection, supra, 291
Conn. 793 n.4.
42
The commissioner does not claim that the department’s interpretation
of § 22a-430-4 (d) (3) should be accorded any deference. See part III of
this opinion.
43
We note that, in the declaratory ruling, the commissioner paraphrased
§ 22a-430-4 (d) (3) by characterizing the department’s power to delay pro-
cessing a completed discharge permit application as proper ‘‘when a related
permit application’’ is incomplete or may be denied. The actual regulatory
language, however, states that the department may delay processing a com-
pleted discharge permit application ‘‘if it is associated with another applica-
tion’’ which is incomplete or may be denied. Regs., Conn. State Agencies
§ 22a-430-4 (d) (3). The commissioner’s substitution of ‘‘a related permit
application’’ for ‘‘another application’’ caused the commissioner’s analysis
of the regulation to omit any reference to the meaning of ‘‘another,’’ and
instead focused the parties on disputing the meaning of the word ‘‘related.’’
Interpretation of the term ‘‘related’’ has little bearing on our resolution of
this issue. Moreover, to the extent that the parties’ interpretations of the word
‘‘related’’ bear on their interpretation of the regulatory language ‘‘associated
with,’’ even assuming these terms have substantially the same meaning,
we disagree that this aspect of the regulation resolves the issue in the
present case.
44
According to the record before us, the department has never officially
deemed the plaintiff’s NPDES application complete. The record does not
disclose whether the department has sent a notice of sufficiency to the
plaintiff pursuant to § 22a-430-4 (d) (2) (A) and (B). Nonetheless, the parties
principally dispute the department’s authority to delay processing a com-
pleted NPDES application pursuant to the second sentence of § 22a-430-4
(d) (3). Therefore, we assume for purposes of this appeal that the plaintiff’s
NPDES permit application is complete, although we note that our analysis as
to the first sentence of § 22a-430-4 (d) (3) would apply should the department
conclude otherwise.