Summit Hydropower Partnership v. Commissioner of Environmental Protection

• Decision Date: 03 August 1993
• Docket Number: Nos. 14618,14619,s. 14618
• Citation: 629 A.2d 367,226 Conn. 792
• Court: Connecticut Supreme Court
• Parties: SUMMIT HYDROPOWER PARTNERSHIP v. COMMISSIONER OF ENVIRONMENTAL PROTECTION et al.

Page 367

629 A.2d 367

226 Conn. 792

SUMMIT HYDROPOWER PARTNERSHIP v. COMMISSIONER OF ENVIRONMENTAL PROTECTION et al.

Nos. 14618, 14619.

Supreme Court of Connecticut.

Argued May 4, 1993.

Decided Aug. 3, 1993.

David H. Wrinn, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Joseph Rubin, Asst. Atty. Gen., for appellant in Docket No. 14618 (named defendant).

Gregory A. Sharp, Hartford, with whom was Marcus G. Organschi, Torrington, for appellant in Docket No. 14619 (defendant town of Putnam).

Roger E. Koontz, Hartford, for appellee in both cases (plaintiff).

Before PETERS, C.J., and CALLAHAN, NORCOTT, KATZ and PALMER, JJ.

CALLAHAN, Associate Justice.

The principal issue in this appeal is whether the proceedings before an administrative agency, wherein the agency denied the plaintiff's request for state water quality certification for a proposed hydroelectric facility, constituted a "contested case" under General Statutes § 4-166(2). The plaintiff, Summit Hydropower Partnership, filed an administrative appeal in the Superior Court from a decision of the named defendant, ¹ the commissioner of environmental protection (commissioner), denying its request for water quality certification. The commissioner based his denial on his determination that the proposed facility did not comply with certain state water standards. The Superior Court, Fuller, J., sustained the plaintiff's administrative appeal. The commissioner and the town of Putnam appealed from the trial court's judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We reverse the judgment of the trial court.

The following facts are relevant. The plaintiff proposed to construct a hydroelectric facility on the Quinebaug River at Cargill Falls in Putnam. Cargill Falls is located at the center of Putnam. Because of its central location and aesthetic appeal, Cargill Falls has historically been regarded, in the words of former Mayor Donald St. Onge, as "a focal point of [the] community." Overlooking the falls, on the east bank of the Quinebaug River, is a town park. The falls and the immediate area make up the landmark which has been depicted on the cover of the Southern New England Telephone Company's directory for the Putnam area.

Since 1730, Cargill Falls has been used for the production of hydropower. The project proposed by the plaintiff would involve the construction of a powerhouse and tailrace next to the existing town dam. The project, when constructed, would be expected to generate approximately 5,400,000 kilowatt-hours per year of electricity. A tailrace is a device that, in this particular case, would continuously reroute the river's flow into the powerhouse and return the water one hundred feet downstream from the point at which the flow had been initially diverted. ² Because the water coming in upstream from the dam would be diverted through the turbines and discharged farther downstream, the defendants feared that the proposed facility would dry up the falls, leaving in its place, "a band of rocks." ³

In September, 1988, the plaintiff filed an application with the Federal Energy Regulatory Commission for a license to construct the proposed project. Pursuant to § 401(a)(1) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1341(a)(1) (1988), commonly known as the Clean Water Act (CWA), the plaintiff also filed a copy of the application with the water management bureau of the Connecticut department of environmental protection and requested certification ⁴ that the proposed project was in compliance with federal and state water quality standards. ⁵ Section 401 certification is a condition precedent to the issuance of a license by the Federal Energy Regulatory Commission to construct and operate a hydroelectric facility.

By letter dated August 10, 1989, the commissioner denied the plaintiff's request for § 401 certification on the ground that the proposed project did not comply with the state's water quality standards. ⁶ The commissioner noted that the project would adversely affect: "1. the physical, chemical and biological integrity and uninterrupted instantaneous flow of the river; 2. the designated uses for the river, including the recreational use and enjoyment, fish, other aquatic life and wildlife and their habitat, and other legitimate uses of the river; [226 Conn. 797] and 3. the aesthetic quality of the river." The commissioner offered to hold a public hearing on the denial of the plaintiff's request. The plaintiff appealed the commissioner's denial and requested a hearing. The town of Putnam intervened pursuant to General Statutes § 22a-19 and participated in the hearing, which was held in December, 1989, and January, 1990. ⁷

At the hearing, an adjudicator appointed by the commissioner heard evidence and testimony and reviewed exhibits. The adjudicator noted that the Cargill Falls area of the Quinebaug River was classified as class C surface water under the state's water quality standards with a goal of achieving class B status. The adjudicator used the class B water quality criteria to evaluate the project. ⁸ He concluded that the proposed project would substantially reduce the flow over Cargill Falls to "an aesthetically undesirable level" and would impair existing designated recreational uses at the site, including the recreational viewing of the falls. The adjudicator concluded that the proposed project did not comply with the state's water quality standards ⁹ and recommended that the commissioner uphold his previous denial of the plaintiff's request for § 401 certification.

The plaintiff requested oral argument directly before the commissioner. The commissioner granted the request and received briefs from all parties and heard oral argument in April, 1991. In September, 1991, after reviewing the record of the hearing, the briefs, and a copy of the Federal Energy Regulatory Commission application for the proposed facility, the commissioner affirmed his initial denial of the plaintiff's request and issued his final decision denying the plaintiff's request for § 401 certification. In doing so, the commissioner adopted the adjudicator's conclusion that because the project would drastically reduce the river's flow and impact its recreational uses, it would violate the state's water quality standards.

In October, 1991, the plaintiff appealed the commissioner's decision to the Superior Court purportedly pursuant to General Statutes (Rev. to 1987) § 4-183(a) of the Uniform Administrative Procedure Act (UAPA). ¹⁰ In its appeal, the plaintiff asked that the court reverse the commissioner's final decision denying its request for § 401 certification. On July 20, 1992, the trial court issued its memorandum of decision concluding that the commissioner had improperly denied the plaintiff's request for § 401 certification and directed him to issue a certificate. This appeal followed.

The defendants argue on appeal that the trial court improperly: (1) denied the commissioner's motion to dismiss the plaintiff's administrative appeal because the plaintiff had not adequately exhausted its administrative remedies; (2) concluded that the plaintiff's administrative appeal from the proceedings on its request for § 401 certification constituted a contested case under General Statutes (Rev. to 1987) § 4-166(2) from which the plaintiff had a right to appeal; ¹¹ (3) concluded that the commissioner had exceeded his authority under state statutes and regulations by denying the plaintiff's request for § 401 certification; (4) concluded that the commissioner had exceeded his authority under federal law by denying the plaintiff's request for § 401 certification; (5) substituted its judgment for that of the commissioner and determined that the commissioner had applied legally vague and undefined aesthetic standards to the plaintiff's request for § 401 certification by denying the request on aesthetics alone; (6) failed to defer to the commissioner's interpretation of the state's water quality standards and the Federal Water Pollution Control Act; and (7) directed the commissioner to issue the requested certification on remand. We conclude that the trial court improperly determined that the plaintiff's appeal had been taken from a contested case and reverse the court's judgment.

The defendants contend that the trial court incorrectly determined that the proceedings before the environmental protection agency constituted a "contested case" under General Statutes (Rev. to 1987) § 4-166(2). They argue, consequently, that the court improperly concluded that it possessed subject matter jurisdiction over the plaintiff's appeal. We agree.

Judicial review of an administrative decision is creature of statute. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163, 561 A.2d 931 (1989); Park City Hospital v. Commission on Hospitals & Health Care, 210 Conn. 697, 702, 556 A.2d 602 (1989). Section 4-183(a) of the UAPA, at the time this action was filed, provided that "[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter...." ¹² (Emphasis added.) A "contested case" is defined in § 4-166(2) as "a proceeding ... in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held...." (Emphasis added.)

The statutory requirement that an appeal to the Superior Court may be taken only from a contested case as defined in § 4-166(2) is an obvious indicator that the legislature did not intend to authorize a right of appeal to the Superior Court from every determination of an administrative agency. See New England Dairies, Inc. v. Commissioner...