Waterbury v. Washington

Citation260 Conn. 506,800 A.2d 1102
Decision Date02 July 2002
Docket Number(SC 16509).
CourtConnecticut Supreme Court

Borden, Norcott, Katz, Palmer and Cocco, Js. Christopher Rooney, with whom were Michael G. Tansley and Howard K. Levine, for the appellant-appellee (named plaintiff).

William H. Bright, Jr., with whom were William H. Narwold, Holly Winger and, on the brief, Charles D. Ray and Vanessa D. Roberts, for the appellees-appellants (named defendant et al.).

Janet P. Brooks, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Gail S. Shane, assistant attorney general, for the appellee (intervening defendant attorney general et al.).

Curtis P. Johnson, with whom, on the brief, were Penny H. Anthopolos and Dana M. Young, for the appellee (intervening defendant Connecticut Fund for the Environment, Inc.).

Robert T. Rimmer and Joseph W. Dellapenna filed a brief for the Connecticut Water Works Association as amicus curiae.



The named plaintiff, the city of Waterbury (Waterbury), appeals1 and the named defendant, the town of Washington (Washington),2 cross appeals3 from the judgment of the trial court, rendered after a court trial, granting a permanent injunction in favor of the defendants and enjoining Waterbury's current operation of its water distribution system. In its appeal, Waterbury claims that the trial court improperly concluded that: (1) Waterbury violated the Connecticut Environmental Protection Act (CEPA), General Statutes § 22a-14 et seq.; (2) the relief granted under CEPA did not constitute a taking of Waterbury's vested rights; and (3) Waterbury failed to establish a prescriptive easement to use the waters of the Shepaug River and interfered with the riparian rights of the defendants. In its cross appeal, Washington claims that the remedy ordered by the trial court does not sufficiently cure Waterbury's breach of a certain 1921 agreement between Waterbury and Washington. We conclude that: (1) the trial court utilized an improper standard to determine whether Waterbury violated CEPA; (2) the trial court improperly concluded that Waterbury had not established a prescriptive easement against the riparian rights of the defendants; and (3) our conclusions regarding the CEPA and the riparian rights issues undermine the trial court's ordered remedial release of water, including the remedy ordered on Waterbury's breach of contract claim. Accordingly, we reverse the judgment of the trial court.

Waterbury brought this action, seeking a declaratory judgment that: (1) it has not breached a certain 1921 agreement between it and Washington; (2) it had not unreasonably polluted, impaired or destroyed the public trust, as provided in General Statutes § 22a-16; and (3) its conduct does not constitute a public or private nuisance,4 or a violation of any existing riparian rights. The defendants counterclaimed that Waterbury had: (1) unreasonably polluted, impaired or destroyed the public trust in the water of the state in violation of § 22a-16; (2) engaged in conduct constituting both a public and private nuisance; see footnote 4 of this opinion; and constituting a violation of the defendants' riparian rights; and (3) breached the 1921 agreement between Waterbury and Washington. After a court trial, the trial court rendered judgment for the defendants.

This case concerns the use of the Shepaug River5 as a source of Waterbury's and various surrounding towns' water supply, and the effect such use has on the water conditions in the Shepaug River. As the trial court stated, this case pits those that view the Shepaug River as an "abundant and low cost supply of potable water" against those who wish to maintain "the natural condition of a beautiful and nearly pristine river. . . ."

The trial court found the following facts, which are not in dispute. "Waterbury first developed in the low-lying portions of its present location and expanded up the sides of the surrounding hills. The growth of [Waterbury] in the last part of the nineteenth century and the first decades of the twentieth was related to the development of mills and manufacturing. In 1893, the General Assembly authorized Waterbury to increase its water supply by taking water from `any and all brooks, rivers, ponds, lakes, and reservoirs within the limits of the county of New Haven or the county of Litchfield such supply of water as the necessities or convenience of the inhabitants of said city may require.' [11 Spec. Acts 322, No. 252, § 1 (1893)]. Later enactments excepted Bantam Lake and certain waters of the Naugatuck River. [15 Spec. Acts 912, No. 344 (1909) and 17 Spec. Acts 84, No. 101 (1919)].

"Rapid growth in population and some dry years in the first decade of the twentieth century strained [Waterbury's] public water supply. The supply was insufficient at times to maintain pressure to the homes and buildings on the higher elevations, served by the `high service' line. The Wigwam Reservoir, built in 1893, was supplemented by the Morris Reservoir, which was under construction from 1910-1913. By 1917, water for both the high service line and the low service line, which serves the downtown area, came directly from these two reservoirs. The Morris and Wigwam reservoirs collect and store water from an eighteen square mile watershed basin known as the Branch Brook basin, through which the Wigwam Brook also runs. (This basin has been variously described during the trial as the `Wigwam basin' or the `Branch Brook basin' to distinguish it from the `Shepaug basin' in the territory from which Waterbury's water supply is derived.)

"The higher in elevation of these two reservoirs is the Morris Reservoir. When the Morris Reservoir is full, at an elevation of 515 feet, the water from that reservoir spills out and flows down to the Wigwam Reservoir, which reaches its overflow point at 424.8 feet of elevation. When the Wigwam Reservoir is full, it spills into the Branch Brook, which eventually empties into the Naugatuck River.

"In 1917, [Waterbury's] engineers reported the need for additional water. [Waterbury] obtained land in the valley of the Shepaug River and built a seven and one-half mile long tunnel to deliver water diverted from that river to its water system in the Wigwam basin.

"[Washington] was wary of [Waterbury's] acquisition of water from the Shepaug River and introduced legislation in the General Assembly to repeal the 1893 [Special] Act. It withdrew the bill upon executing a contract with [Waterbury] on May 3, 1921.6 By the terms of that contract, [Waterbury] pledged not to reduce the stream flow in the Shepaug River below 1.5 million gallons per day7 between May 1 and November 1 of each year. [Waterbury] further agreed that `it will not divert water from the west branch of the Shepaug River at any time when the distributing reservoirs into which the [Waterbury] aqueduct shall convey such water so diverted are full and overflowing.' The 1921 contract provided that [Waterbury] would divert such water only `to the extent that it may be required to supply the actual needs of the customers of said city and to maintain the storage in its potable water supply reservoir.'

"The Shepaug Reservoir, located behind the Shepaug Dam that was under construction from 1929 to 1933, is located about eight miles west of the reservoirs in the Wigwam basin. The watershed basin for the Shepaug Reservoir is about twenty-eight square miles in size. In 1943, [Waterbury] completed the Pitch Reservoir, into which the flow from the Shepaug tunnel was directed. The Morris Reservoir is immediately downstream from the Pitch, which, in addition to water received from the Shepaug basin through the tunnel, stores runoff from part of the Wigwam basin. "In 1963, to increase storage and supply, Waterbury built another dam and reservoir immediately to the north of the Shepaug Reservoir, known as the Cairns Reservoir, with a watershed of approximately ten additional square miles in the Shepaug basin. The Wigwam basin's watershed, at eighteen square miles, is roughly half the size of the Shepaug watershed, which occupies a total of thirty-eight square miles. . . .

"There are, at present, three routes by which water leaves the Shepaug Reservoir: by diversion through the aqueduct tunnel to the Pitch Reservoir, by spillage down the spillway to the Shepaug River when the reservoir is full, and by release from a pipe in a chamber in the dam to the Shepaug River. That pipe, which the witnesses referred to as `the eight inch pipe,' if left full open releases a maximum flow of approximately 4.9 [mgd] down the Shepaug River. The flow may be considerably lower depending on the head of pressure. . . .

"There is a pool at the foot of the Shepaug Dam. For a substantial distance south of the dam, the land on both sides of the river is owned by Waterbury. Peter's Weir (a small dam) is located a short distance downstream from the dam, and a stream flow gauge has existed in the past at this weir. About three miles below the weir the west branch of the Shepaug River reaches a confluence with the Bantam River, which is located to the east. From the confluence onward, about 50 percent of the summer flow of the Shepaug River is contributed by the Bantam River as measured by Dr. Kenneth Wagner at stream gauges installed in the summer of 1999. The Steep Rock Association, Inc., operates a land trust of about 220 acres located on the Shepaug River both north and south of the confluence with the Bantam River and also in an area on the river north of Washington Depot.

"The town center of Washington Depot is south of the confluence. The river flows south from the Depot through about 260 riverside acres owned by the Roxbury Land Trust, Inc., along which hiking and other recreational activities are permitted. The parties agree that the stretch of river...

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