Opinion
No. CV07-4013054
August 5, 2008
MEMORANDUM OF DECISION
FACTS
The plaintiff/appellant, the Watertown Fire District (hereinafter "District"), is a public "water company" as defined by General Statutes § 16-1(a)(10). The District was chartered by Special Act of the Connecticut Legislature in 1913. The Legislature has adopted amendments to the original charter over the years. The District was primarily established to provide water service and sanitary sewer service to residential, municipal, industrial and commercial customers within the District. The District territory is composed of approximately 20,000 acres of land within the town of Watertown. (See Record Exhibit E.)
General Statutes § 16-1(a)(10) states:
(10) "Water company" includes every person owning, leasing, maintaining, operating, managing or controlling any pond, lake, reservoir, stream, well or distributing plant or system employed for the purpose of supplying water to fifty or more consumers. A water company does not include homeowners, condominium associations providing water only to their members, homeowners associations providing water to customers at least eighty per cent of whom are members of such associations, a municipal waterworks system established under chapter 102, a district, metropolitan district, municipal district or special services district established under chapter 105, chapter 105a or any other general statute or any public or special act which is authorized to supply water, or any other waterworks system owned, leased, maintained, operated, managed or controlled by any unit of local government under any general statute or any public or special act;
The District acquired ninety-two (92) acres of land in Woodbury in 1916 and established a Well Field on the land in Woodbury in 1924. Over the course of years, the District acquired additional property in Woodbury contiguous to the original acquired property. The District has expanded the Well Field to where it now consists of approximately one hundred-seventy (170)± acres. The Well Field is located easterly of the Bethlehem-Woodbury Road in Woodbury, Connecticut and abuts the Nonnewaug River. (See Record Exhibit E.)
The defendant/appellee is the Inland Wetlands and Water-courses Agency of the Town of Woodbury (hereinafter "Agency"). The Agency acts pursuant to General Statutes § 22a-42 to regulate activities affecting wetlands and watercourses within its territorial limits.
This appeal by the District is to determine whether the Agency has jurisdiction to regulate the District's proposal to remove sediment from the Nonnewaug River adjacent to two weirs (i.e. dams) used to impound and divert water to the District's wells as part of its public water system. This appeal is filed pursuant to General Statutes §§ 22a-43(a) and 8-8.
The District obtained permits from the Connecticut Department of Environmental Protection in 1958 to build two weirs in the Nonnewaug River as it flows through the Well Field. The weirs impound water from the Nonnewaug River, which is then diverted into recharge basins along the Well Field, then into the wells and then pumped to a storage tank in the District to be used within the District. (See Record Exhibit E.)
The District's proposed activity is to remove between 2,650 and 3,500 cubic yards of sediment from the Nonnewaug River immediately after the two weirs in the river adjacent to the Well Field. The District claims it must remove this sediment at five-year intervals or else the sediment "chokes off" the river channel which results in flooding of the Well Field. If the sediment is allowed to remain and flood the Well Field after heavy rains, it then cuts off access to the wells and pumphouse, resulting in contamination of the wells and damage to the pumps. This activity affects the operation of the District's water supply system. (See Record Exhibit E and Plaintiff's Exhibits 2-8.)
The District had, on previous occasions, made application to Agency to obtain a permit to remove the sediment from the Nonnewaug River. The Agency has granted the permits in the past, but the District claims that the conditions added to the permits were onerous and unreasonable, making the permits equivalent to unusable.
On February 7, 2007, the District filed an application with the Agency seeking a decision that the Agency did not have jurisdiction to regulate the removal of sediment from the Nonnewaug River. The District claimed that the proposed activity by the District was exempt pursuant to General Statutes § 22a-40(a)(5) and § 3.1(e) of the Woodbury Inland Wetlands and Watercourses Regulations. (See Record Exhibit B.) The District filed said application pursuant to § 3.4 of the Regulations. On March 26, 2007, the Agency rendered a decision whereby it found that it does have jurisdiction over the District's proposed activity because the District failed to demonstrate how the proposed activity was exempt pursuant to its interpretation of General Statutes § 22a-40(a)(5) and § 3.1(e) of the Regulations. (See Record Exhibit A.) (See also Record Exhibit D -transcript of Hearing dated March 26, 2007.)
Section 3.4 of the Woodbury Inland Wetlands and Watercourses Regulations provides:
Any person proposing to carry out a permitted or non-regulated operation or use, as specified in Sections 3.1 and 3.2 of these regulations, of a wetland or watercourse that may disturb the natural and indigenous character of a wetland or watercourse shall, prior to commencement of such operation or use, notify the Agency on a form provided by it (Petition for Declaratory ruling), and provide the Agency with sufficient information to enable it to properly determine that the proposed operation and use is a permitted or non-regulated use of the wetland or watercourse. The Agency or its designated agent shall rule that the proposed operation or use is a permitted or non-regulated use or operation or that a permit is required. Such ruling shall be in writing and shall be made no later than the next regularly scheduled meeting of the Agency following the meeting at which the request was received. The designated agent for the Agency may make such a ruling on behalf of the Agency at the Agency's discretion.
The District's appeal to this court is to determine whether its proposed activity is exempt pursuant to the aforementioned Statute and Regulation. This requires the court to engage in statutory interpretation. The issue is whether the District's proposed activity is permitted as of right, as "necessary to the impounding, storage and withdrawal of water in connection with public water supplies . . ." See General Statutes § 22a-40(a)(5).
Aggrievement
The District must first establish that it is aggrieved by the decision of the Agency pursuant to General Statutes § 22a-43(a). Aggrievement establishes the court's jurisdiction to hear this appeal.
The Supreme Court recently reiterated the test to be applied for finding aggrievement: "The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 284 Conn. 381, 394, 941 A.2d 868 (2008).
The court finds that the District is aggrieved by the Agency's decision of March 26, 2007 and meets the fundamental test for aggrievement. The District's status as the water company responsible for maintaining the weirs at issue establishes that it has a legal interest in the subject matter of the Agency's decision which is specific to it alone. The fact that the Agency's decision would result in the requirement that the District expend time and resources to file an application with the Agency demonstrates that this interest has been adversely affected. See Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).
Issue
The issue before the court is whether General Statutes § 22a-40(e)(5) and § 3.1(e) of the Regulations provide an exemption to the District from making an application to the Agency for a permit to remove the sediment from the Nonnewaug River. To respond to the issue, the court must engage in a review of the statute and regulation in question.
DISCUSSION CT Page 12795
The parties both acknowledge that the court has before it a question of law based upon the interpretation of General Statutes § 22a-40(a)(5). As there is no appellate authority on the issue, the court must engage in statutory construction and application as to this particular matter.General Statutes § 22a-40(a)(5) provides in relevant part:
(a) The following operations and uses shall be permitted in wetlands and watercourses, as of right:
. . .
(5) Construction and operation, by water companies as defined in section 16-1 or by municipal water supply systems as provided for in chapter 102, of dams, reservoirs and other facilities necessary to the impounding, storage and withdrawal of water in connection with public water supplies except as provided in sections 22a-401 and 22a-403 . . .
In conjunction with General Statutes § 22a-40(a)(5), the court will also considers § 3.1(e) of the regulations, which mirrors the language of General Statutes § 22a-40(a)(5).
Section 3.1(e) of the Woodbury Inland Wetland and Watercourses Agency Regulations provides:
The following operations and uses shall be permitted in inland wetlands and watercourses, as of right:
. . .
e. Construction and operation by water companies as defined in Section 16-1 of the Connecticut General Statutes, or by municipal water supply systems as provided for in Chapter 102 of the Connecticut General Statutes, of dams, reservoirs and other facilities necessary to the impounding, storage and withdrawal of water in connection with public water supplies, except as provided in Sections 22a-401 and 22a-410 of the Connecticut General Statutes . . .
The court begins with a review of the law in Connecticut regarding statutory construction.
"The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply . . ." When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Citation omitted; internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-02, 920 A.2d 1000 (2007).
"It is a basic tenet of statutory construction that the intent of the legislature is to be found not in an isolated phrase or sentence but, rather, from the statutory scheme as a whole . . . Under General Statutes § 1-2z, we cannot look beyond the text of the statutory language if that language, as applied to the facts of the case, is plain and unambiguous and does not yield a bizarre or unworkable result." (Citations omitted; internal quotation marks omitted.) Gaida v. Planning Zoning Commission, 108 Conn.App. 19, 25, 947 A.2d 361 (2008). "Moreover, in construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended." (Internal quotation marks omitted.) Finan v. Finan, 107 Conn.App. 369, 374, 945 A.2d 476 (2008).
"Moreover, it is well settled that the legislature is always presumed to have created a harmonious and consistent body of law . . . [T]his tenet of statutory construction . . . requires [this court] to read statutes together when they relate to the same subject matter . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction." (Internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 850 (2008).
With these guidelines, the court reviews General Statutes § 22a-40(a)(5) under the facts as outlined.
Within § 22a-40(a)(5), there is reference to three additional statutory sections. General Statutes § 16-1, referred to earlier, defines water companies. It is conceded that the District is a water company pursuant to the definition.
In addition, there is reference to General Statutes §§ 22a-401 and 22a-403. General Statutes § 22a-401 confers on the Commissioner of Environmental Protection jurisdiction to oversee "[a]ll dams, dikes, reservoirs, and other similar structures, with their appurtenance . . ."
General Statutes § 22a-403, in referencing dams, dikes, reservoirs and other similar structures, states under subsection (a): "Before any person constructs, alters, rebuilds, substantially repairs, adds to, regulates or removes any such structure, such person shall apply to the Commissioner for a permit to under take such work." Subsection (b) of § 22a-403 further provides in relevant part: "An applicant for a permit issued under this section to alter, rebuild, repair or remove an existing dam shall not be required to obtain a permit under sections 22a-36 to 22a-45a, inclusive . . ."
The court looks to these additional statutes to ascertain whether a coherent statutory scheme may be ascertained.
From the plain and unambiguous statutory language, the Legislature has granted water companies the authority, "as of right," therefore exempt from permitting requirements, to operate dams (i.e., weirs) necessary to the impounding, storage and withdrawal of water in connection with public water supplies. General Statutes § 22a-40(a)(5). "Operation" is defined in Webster's New World Dictionary of the American Language as "the act, process or method of operation," "the condition of being in action or of work." "Operate" is defined as "to be in action so as to produce an effect; act; function; work;" "to bring about a desired or appropriate effect; have a certain influence."
In applying this language to the facts in this matter, a water company would have the authority, "as of right," to do what is necessary relative to dams (weirs) to effectuate the impounding, storage and withdrawal of water, i.e. to make the process operational.
Furthermore, reading General Statutes § 22a-40(a)(5) in conjunction with General Statues § 22a-403(a), to determine whether there is a coherence with the statutory scheme as set by the Legislature, it appears to the court that the Legislature took into consideration the issue of repairs, removals and maintenance of dams pursuant to General Statutes § 22a-403(a). Both § 22a-40(a)(5) and § 22a-403(b) exempt water companies from the requirement of applying to local inland wetlands and watercourses agencies, whose jurisdiction is limited to carrying out the purposes and policies of General Statutes § 22a-36 to 22a-45a. See General Statutes § 22a-42(a) and (c). Section 22a-40(a)(5) provides that construction and operation of dams by water companies are permitted as of right, "except as provided in sections 22a-401 and 22a-403 . . ." Consequently, the only limitations placed on such activities by the Legislature are contained in §§ 22a-401 and 22a-403. Section 22a-403, as noted above, explicitly exempts one who applies under that section from the permit requirements of the Inland Wetlands and Watercourses Act, §§ 22a-36 to 22a-45a. The Legislature provided to the Commissioner of Environmental Protection jurisdiction over such endeavors and specifically excepted the same under General Statutes § 22a-40(a)(5).
Therefore, the court concludes in this matter that although the Legislature generally requires entities to apply for permits relating to dams, dikes, reservoirs and other similar structures, pursuant to General Statutes § 22a-40(a)(5), it specifically exempts water companies from the need to seek permits from local inland wetland agencies relative to the operation of dams, reservoirs and other facilities in the process of impounding, storage and withdrawal of water for public water supplies. In addition, the Legislature set forth the mechanism, under § 22a-401 et seq., to be used should dams, reservoirs or other similar structures require repairs.
The purpose of dredging the Nonnewaug River, which the District seeks to do, is to repair a problem created by the dam whereby an inordinate amount of sediment collects in the river by the weirs, which then causes the river to overflow. This causes a disruption to the water company. The Legislature has put into place the process to be followed to make such repairs. It appears that in view of the legislation, the Legislature did not contemplate that applications for permits were to be filed with local inland wetland agencies to make such repairs.
CONCLUSION
The court finds that General Statutes § 22a-40(a)(5) exempts the District from the need to apply for a permit with the Woodbury Inland Wetlands and Watercourses Agency for the work which it is proposing to do in the Nonnewaug River. The District's appeal is sustained.