TILCON CONNECTICUT, INC. v.
COMMISSIONER OF ENVIRONMENTAL PROTECTION, SC 19203
Judicial District of New Britain
Environment; Wetlands; Connecticut Water Diversion Policy Act; Whether Defendant Agency, When Considering Water Diversion Permit Application, has Authority to Demand Comprehensive Site Information; Whether Agency has Jurisdiction to Regulate Wetlands Activities. The plaintiff, Tilcon Connecticut, Inc., withdraws more than fifty thousand gallons of water a day from basins or wells at each of its five quarrying facilities. The water is used for washing sand and stone products, for non-contact cooling of machinery and for dust control. Because of that activity, Tilcon filed applications for water diversion permits as required by the Connecticut Water Diversion Policy Act (act). The defendant department requested additional information from Tilcon regarding each property, including topography, an environmental resource inventory, and future excavation plans, so that it could evaluate the impact of the diversions on wetlands and water resources. The department’s commissioner subsequently issued a declaratory ruling upholding the agency’s authority to request and consider the additional information. Tilcon appealed to the Superior Court challenging the declaratory ruling, claiming that the department’s request for additional information exceeded the scope of its investigatory authority. Tilcon maintained that, under the act, it was only required to provide information regarding the potential “area of influence” of each withdrawal; that is, the surrounding area where the withdrawal might lower the water level; and that the agency was not authorized to demand an environmental resource inventory that includes areas beyond the potential impact of the regulated activity. The court disagreed, explaining that the act’s definition of “diversion,” when read in conjunction with the rest of the act, grants the department broad investigatory authority to review the wetland impacts of diversion activities. The court also rejected Tilcon’s claim that the department was precluded from seeking information regarding activities in or near wetlands at its North Branford site because it had already obtained wetland permits to conduct the regulated activities from the town’s wetlands agency. It asserted that municipal wetlands agencies have exclusive jurisdiction under the Inland Wetlands and Watercourses Act to regulate such activities. Tilcon also argued that the wetlands agency acted as an “agent” of the department when it granted the wetlands permits and that the department’s decision to reevaluate the wetland impacts of its activities therefore constituted an improper reopening of the wetlands permits. The court rejected that claim, finding that both the department and municipal wetlands agencies have broad and concurrent jurisdiction to regulate wetlands activities. The court remanded the matter to the department for further fact finding on Tilcon’s permit applications. Tilcon appeals, claiming the act does not authorize or require environmental studies of areas physically unrelated to the regulated diversion. The department cross appeals, claiming that the court lacked authority to remand for further proceedings on the permit applications and that it should have simply affirmed the department’s declaratory ruling as to the scope of its authority under the act.