Hartford Elec. Light Co. v. Water Resources Commission

Decision Date22 December 1971
Citation291 A.2d 721,162 Conn. 89
Parties, 3 ERC 1953, 2 Envtl. L. Rep. 20,253 HARTFORD ELECTRIC LIGHT COMPANY v. WATER RESOURCES COMMISSION et al.
CourtConnecticut Supreme Court

Bourke G. Spellacy, Hartford, with whom were Stuart N. Updike, Hartford, and Charles F. Corcoran, for appellant-appellee (defendant Public Utilities Comm.).

Walter F. Torrance, Jr., Waterbury, with whom, on the brief, were H. Bissell Carey, Jr., Hartford, and Edmund W. O'Brien, New London, for appellant-appellee (plaintiff).

Thomas F. Parker, for appellee-appellant (named defendant).

Julian D. Rosenberg, for appellee-appellant (defendant Cynthia B. Carlson) and as amicus curiae on behalf of Connecticut Valley Action Committee, Inc.

Before THIM, RYAN, SHAPIRO, LOISELLE and FITZGERALD, * JJ.

THIM, Associate Justice.

This appeal concerns the conflicting claims of jurisdiction of two state regulatory agencies as to the granting of permits for the erection of power transmission lines over navigable rivers in the state of Connecticut. The material facts are as follows: Prior to December, 1965, the plaintiff, the Hartford Electric Light Company, hereinafter called HELCO, determined that in connection with the utilization of electric power to be produced at a power plant in Haddam, it would be necessary to construct two 345-KV transmission lines for the purpose of transmitting the electricity produced. The construction of these high-voltage lines would require the crossing of the Connecticut River at three locations. At each of the three crossings, two large steel towers would be constructed to support the lines, one on each side of the river. Eight separate cables would be strung across the river at each of the three crossings. None of the cables or supporting structures would be physically in the waters of the Connecticut River, the cables having a minimum clearance of 111 feet. In January, 1966, HELCO notified the defendant, the Public Utilities Commission, hereinafter called the P.U.C., of the proposed construction. In January, 1966, HELCO applied to the defendant, the Water Resources Commission, hereinafter called the W.R.C., for permission to construct the lines. After appropriate notice and hearing, the P.U.C., on June 23, 1966, approved the HELCO application. On the same day, after notice and hearing, the W.R.C. also approved the HELCO application. While the P.U.C. certificate did not attach any condition to its issuance, Certificate No. 2444 issued by the W.R.C. did contain a condition. 1 On July 6, 1966, HELCO appealed to the Superior Court with respect to the condition. The W.R.C. filed a plea in abatement to the appeal, claiming that the appeal was not authorized by statute. Although the plea was sustained (Tedesco, J.), HELCO was allowed to amend its complaint to seek relief by way of a declaratory judgment. 2 Cynthia B. Carlson was the owner of a twenty-five-acre tract of residentially zoned land on the west bank of the Connecticut River which faced the two 345-KV transmission line towers and an earlier-erected 115-KV transmission line tower. She and the P.U.C. were allowed to enter this action as party defendants. The Connecticut Valley Action Committee, Inc., was granted permission to file a brief as amicus curiae. While the trial court (Barber, J.) held that the W.R.C. had jurisdiction of the subject-matter embraced in its certificate, and that the condition attached to the W.R.C. certificate did not exceed the W.R.C.'s jurisdiction and authority, the trial court concluded that the condition was illegal in that it was not supported by an adequate record and finding of the W.R.C. From the judgment rendered by the trial court all parties have appealed to this court. 3

The central issue is whether the trial court was correct in concluding that the W.R.C., rather than the P.U.C., had jurisdiction to grant permits for placing overhead lines across navigable rivers. Both the P.U.C. and W.R.C. claim that they have been delegated this jurisdiction by the legislature. The claim of the P.U.C. is based on five sections of the General Statutes pertaining to public service companies. 4 These statutory provisions were all part of the Public Utilities Act of 1911 as originally enacted or the additions thereto. Being a body created by the General Assembly, the powers of the P.U.C. are limited to those given to it by its creator. Southern New England Telephone Co. v. Public Utilities Commission, 144 Conn. 516, 523, 134 A.2d 351; John J. McCarthy Co. v. Alsop, 122 Conn. 288, 189 A. 464. The five relevant sections in title 16 of the General Statutes give the P.U.C. broad powers, the scope of which has been recognized by this court. In Connecticut Co. v. Norwalk, 89 Conn. 528, 533, 94 A. 992, 994, this court, in describing the Public Utilities Act of 1911, stated that the Act was 'broad in its sweep, extensive in the jurisdiction conferred, and far-reaching in the supervision of public service corporations and the control over public and private interests. See also Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 661, 103 A.2d 535. After carefully analyzing all relevant statutory authority, however, we find no merit to the claim that the legislature has delegated exclusive jurisdiction over the location of transmission lines over navigable rivers to the P.U.C.

Section 16-243, 'Jurisdiction of commission (P.U.C.) over electricity transmission lines,' is heavily relied on by the P.U.C. in support of its argument. This court realizes that the transmission of electricity, especially the underground construction of transmission lines, is highly technical, so that the control of plants and lines should be under the supervision of a statewide agency. Jennings v. Connecticut Light & Power Co., supra, 660, 103 A.2d 535. 'In delegating exclusive jurisdiction over the construction and reconstruction of facilities for the transmission of electricity to the public utilities commission (§ 16-243), the General Assembly obviously recognized the desirability that an agency with statewide jurisdiction and with expertise in the field have exclusive power and responsibility in such area.' Gimbel v. Loughlin, 28 Conn.Sup. 72, 78, 250 A.2d 329, 333.

It is clear that § 16-243 confers on the P.U.C. exclusive jurisdiction over technical matters such as the quality and finish of the materials, wires, poles, conductors, fixtures and the method of their use. It further grants to the P.U.C. exclusive jurisdiction over the location of transmission lines on private property. 'Exclusive jurisdiction and direction of such lines erected upon private property is in the public utilities commission by virtue of § 16-243. See Jennings v. Connecticut Light & Power Co., . . . (140 Conn. 650, 663-664, 103 A.2d 535).' Connecticut Light & Power Co. v. Costello, 161 Conn. 430, 444, 288 A.2d 415. The statutory language, however, is explicit in confining this jurisdiction over the location of transmission lines to situations involving 'private property.' In that the case at bar involves the erection of transmission lines over navigable rivers, § 16-243 does not govern the situation. Nor do we interpret the Jennings and Costello cases as supporting the principle that the P.U.C. has exclusive jurisdiction over the location of transmission lines over navigable rivers.

Section 16-235 confers some measure of local control over the location of structures and apparatus of public service companies, and grants to the P.U.C. an appellate jurisdiction 'to affirm or modify or revoke such orders' of local authorities. The P.U.C. argues that, read in conjunction with Jennings v. Connecticut Light & Power Co., supra, the P.U.C.'s authority supersedes not only that of local agencies, but state agencies as well. While we held in the Jennings case (140 Conn. p. 663, 103 A.2d p. 542) that 'as between state control and local control of a public utility . . . the local municipal authorities should play a secondary role where a clash of authority appears to exist,' this does not apply to a clash between the P.U.C. and the W.R.C., the latter also being a state regulatory agency, not a local municipality. Similarly, the other statutes relied on by the P.U.C. do not confer jurisdiction on the P.U.C. to govern the location of transmission lines over navigable rivers. We do note and emphasize that our decision in this case is in no way meant to diminish any powers of the P.U.C. as expressed by statute or case law including Algonquin Gas Transmission Co. v. Zoning Board of Appeals, 162 Conn. 50, 291 A.2d 204. In the Algonquin case, supra, it was expressly stated that the jurisdiction of the P.U.C. over location was subject to be superseded by other statutory enactments.

HELCO contends that it has been granted a franchise by the legislature to erect and maintain its facilities on or over highways. In that navigable rivers are equated to highways, they argue that their charter, therefore, gives them the authority to place transmission lines over navigable rivers as well. After careful analysis of Special Acts 1899, No. 289, an act 'Incorporating The Marine Power Company,' the forerunner of HELCO, we find no merit to this contention. A franchise granted by the legislature does not carry with it the absolute right to place its installations where it pleases and without proper regulation. State v. Towers, 71 Conn. 657, 667, 42 A. 1083. Franchises are subject to the interests of the general public as expressed in general regulatory statutes. Delinks v. McGowan, 148 Conn. 614, 623, 173 A.2d 488.

We now turn to the delegated powers of the W.R.C. to determine the extent of its jurisdiction. Prior to 1963, the W.R.C., a regulatory agency, was granted certain power by the legislature over the use and obstruction of navigable waters. 5 Under § 25-7, while no obstruction or encroachment could be placed in the water until a certificate had been secured from the W.R.C., the certificate...

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