Date: 07-20-2015

Case Style: Tilcon Connecticut, Inc. v. Commissioner of Environmental Protection

Case Number: (SC 19203

Judge: EVELEIGH, J.

Court: Judicial Branch, State of Connecticut.

Plaintiff's Attorney: Timothy S. Hollister, Aaron D. Levy and Beth Bryan Critton

Defendant's Attorney: David H. Wrinn, George Jepsen

Description: . The plaintiff, Tilcon Connecticut, Inc., anearthmaterialsexcavationandprocessingcompany, petitionedthedefendant,theCommissionerofEnvironmental Protection (commissioner), for a declaratory ruling defining the scope of the authority possessed by the Department of Environmental Protection (department)1 to request certain information from the plaintiff for its various water diversion permit applications pursuant to the Connecticut Water Diversion Policy Act (waterdiversionact),GeneralStatutes§ 22a-365etseq.2 The plaintiff appealed the commissioner’s declaratory ruling, which deemed all of the department’s actions authorized under the water diversion act, to the trial court pursuant to General Statutes §§ 4-176 (h) and 4183 (a). The plaintiff now appeals from the judgment of the trial court, which endorsed in all material respectsthecommissioner’sinterpretationofthewater diversion act,3 claiming that the trial court improperly: (1) construed the water diversion act as essentially grantingthe departmentjurisdictionand authorityover all environmental resources and issues, including jurisdiction and authority over the plaintiff’s excavation activities, pertaining to the entirety of its properties, even though a large percentage of those resources and issuesare,accordingtotheplaintiff,hydraulicallyunrelated to the proposed water diversions for which the plaintiffrequestspermits;(2)construedthewaterdiversion act as allowing the department to effectively reopen duly issued municipal wetlands permits by demanding a wetlands mitigation plan for excavations previously authorized by such permits; and (3) upheld the department’s authority to delay processing the renewal of the plaintiff’s National Pollutant Discharge Elimination System (NPDES) permit until it provided the department with the information requested in connection with its permit applications under the water diversion act. We conclude that the water diversion act does not authorize the department’s attempts to regulate the plaintiff’s excavation activities because those activities are neither diversions within the scope of the plaintiff’s permit applications nor properly viewed as effects of the diversions for which permits were sought. We also agree with the plaintiff that the water diversion act does not authorize the department to request a wetlands mitigation plan for the alteration ofwetlandsthathadbeenauthorizedbypriormunicipal wetlands permits, and that the department may not delay processing the plaintiff’s NPDES permit application due to a pending water diversion permit application. Therefore, we reverse the judgment of the trial court andremand the casewith direction tosustain the plaintiff’s appeal. Toprovidesomecontextfortheissuesinthepresent case, we begin by setting forth the basic framework of
the water diversion act. The water diversion act was enacted to ‘‘[protect] the water resources of the state . . . .’’ General Statutes § 22a-366.4 It requires, among other things, a permit for any diversion of the water contained within, flowing through, or bordering upon this state. See General Statutes §§ 22a-367 (9) and 22a368 (b).5 Although the water diversion act defines ‘‘ ‘[d]iversion’ ’’ to include effectively any activity that changes the flow of any amount of water; General Statutes § 22a-367 (3); it thereafter significantly narrows the scope of the activities requiring permits by way of exemptions. See General Statutes § 22a-377 (a).6 To obtain a permit to divert water, an applicant must provide the department with information ‘‘the commissioner deems necessary to fulfill the purposes of [the water diversion act],’’ including, but not limited to, a series of enumerated items relating to the nature of the diversion and the effect thereof on water resources. General Statutes § 22a-369.7 In acting on a completed application, the commissioner must consider a variety of factors that make use of the information required in a permit application. General Statutes § 22a-373 (b).8 The commissioner may grant a permit for a period not toexceedtwenty-fiveyears.Regs.,Conn.StateAgencies § 22a-377 (c)-2 (h) (1). We explore the water diversion act in greater detail in part IV B of this opinion. I FACTS AND PROCEDURAL HISTORY Theundisputedfactsofthepresentcasearesetforth in the declaratory ruling issued by the commissioner, whichwewillsupplement,asneeded,bytheadministrative record. The plaintiff owns facilities used for earth materialsexcavationandprocessinglocatedonproperties in Plainfield, Wallingford, Montville, Griswold, and North Branford. To conduct its excavation activities, the plaintiff has obtained a variety of permits, other than the water diversion permits at issue in the present case, from various federal, state, and local agencies. In2003,theplaintiffsubmittedtothedepartmentfive individualapplicationsforwaterdiversionpermits,one application for each of its five facilities, for the maximum twenty-five year period. Each of the diversions forwhichtheplaintiffsoughtpermits—specifically,two withdrawals of water from wells and eight withdrawals ofwaterfrommanmadesurfacebasinslocatedatlower elevations on its sites—had already been in existence for several years and, in some instances, decades. The plaintiffsoughtpermitsforthematthistimeinresponse totheenactmentofGeneralStatutes§ 22a-368a,9 which clarified that the water diversion act’s permitting requirements applied to diversions predating its enactment and provided amnesty for those who remedied noncompliance with permitting requirements within a certain time period. Each of the plaintiff’s withdrawals ofwaterenablesittoexcavateandprocessearthmateri
als on its properties. The plaintiff uses the water from thesetensourcesforquarryoperations,includingwashing aggregate, processing stone sand, cooling equipment, and suppressing dust. Although these diversions enable the plaintiff’s excavation activities on its sites, the water is not used directly to excavate or extract earth materials from the resources on its sites. In each of its applications, the plaintiff detailed the use and source of the withdrawn water. As for use, the plaintiff classified each permit as one for the diversion of water for consumptive use—as opposed to nonconsumptive use—despite the fact that it used much of the withdrawn water in ‘‘closed loop’’ systems, meaning that the water used would be returned to its original source, with minimal consumption or evaporation of water in the process. Some of the withdrawn water was, however, directly consumed for uses such as dust suppression and was not returned to its source. Each water source was located completely on the plaintiff’s propertyandwassuppliedprimarilybystormwaterand, to some extent, groundwater seepage. The basins and wells were not supplied by water from watercourses, public or private drinking supplies, or recreation areas. The plaintiff included with its applications information to demonstrate its compliance with various laws. Itattachedalistingofallfederal,state,andlocalpermits alreadyissuedorpendingforthesiteorproposedactivity. It also provided a description of whether the proposed diversion would provide instantaneous flow or release of surface waters in the natural downstream direction below the diversion and, if so, whether such release was authorized by an NPDES permit. NPDES permits are required pursuant to the federal Clean Water Act (clean water act); 33 U.S.C. § 1342; and General Statutes § 22a-430, which ‘‘require any person or municipality to obtain a permit prior to discharging any substance into the waters of the United States or Connecticut. In Connecticut, the department is responsible for issuing both federal and state discharge permits.’’ (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 793 n.4, 970 A.2d 640 (2009). The plaintiff’s application for the North Branford site was the only diversion for which the plaintiff sought a permit that resulted in a discharge requiring an NPDES permit. In that application, the plaintiff described how the North Branford quarry collects stormwater that must be pumped out of the quarry and discharged into a series of sedimentation basins, where it later flows into a pond. The application noted that the collection and discharge of this stormwater into the pond had been authorized by an NPDES permit. The plaintiff included a variety of other materials in support of its applications, including environmental reports.10 In those reports, the plaintiff generally
described existing ecological conditions and wildlife habitat characteristics at the entireties of the sites, but providedmorespecificinformationonlyforthoseareas adjacenttoexistingwaterwithdrawalsbecauseitcalculated, by way of the ‘‘area of influence,’’11 that the withdrawals were minimal and not anticipated to have an effect on ecological conditions on remote areas of the properties. Three years after submission of the permit applications, on July 18, 2006, the plaintiff received a letter from the department requesting additional information forallfiveoftheplaintiff’sapplications.Thedepartment requested comprehensive information about the plaintiff’s excavation activities for the duration of the requested permits, namely, twenty-five years. Specifically, the department requested ‘‘a site plan which detailstheoverallproposedlimitsofearthwork,including but not limited to, excavation of sand and gravel deposits, construction of roadways, soil stabilization measures and wetland/watercourse and associated buffer areas, at the identified project sites . . . .’’ The department stated that the site plan ‘‘must include . . . [t]he location and extent of inland wetland and watercourses, endangered, threatened and special species habitats; and significant natural communities; [t]he location and extent of buffer areas provided to protect [these resources]; [a]dequate erosion and sedimentation controls . . . for all phases of development; [r]estoration and [e]nhancements of existing ponds, wetlands and watercourses utilized for sand and gravel processing to maximize wetland functions and values; [a]dequate stormwater control measures . . . for all phases of development and [f]inal stabilization measures for the completed site development.’’ In support of its request, the department stated that, ‘‘[s]incetheauthorizationof theproposedwatersupply systems will facilitate the continued mining activities and earth product processing at the project sites, [department] staff need[s] the aforementioned site development plans to fully assess the long-term effects oftheproposeddiversiononinlandwetlandsandwatercourses, fish and wildlife and water quality.’’ The plaintiff did not fully comply with the department’s request. Instead, by way of a letter dated March 28, 2007, the plaintiff expressed its disagreement with the department’s claim that the ‘‘effect of the proposed diversion’’couldextend,geographicallyandtemporally, to the proposed limits of its excavation activities for the next twenty-five years. The plaintiff claimed that the ‘‘effect of the proposed diversion’’ was only those portions of the properties that ‘‘are, or are reasonably expectedtobe,affectedbyanactualdiversionofwater, [which it claimed was] the ‘area of influence’ of such diversion,orinthecaseofaquarrywherethestormwater collection exceeds [100] acres, the downstream
impact.’’12 Theplaintiffreliedonthis‘‘areaofinfluence’’ metriceventhough,aswillbediscussedinfurtherdetail in part IV B of this opinion, the water diversion act makesnoexpressreferenceto‘‘areaofinfluence.’’With respect to information about its excavation activities forthefulltwenty-fiveyearperiod,theplaintiffclaimed that it could not, in any event, forecast the extent of its ‘‘site operations [that far] into the future [because they are] based on the regional business climate and restrictions mandated by local agencies’’ from which it obtains its excavation permits.13 In accordance with its own interpretation of the department’s authority, the plaintiff submitted ‘‘all of the additional information requested by the [department] in 2006 with respect to the area of influence or discharge of each diversion, as the applicant has calculated it.’’14 (Emphasis added.) In a letter dated October 21, 2008, which is central to the declaratory ruling that followed, the department claimed that it had jurisdiction and authority over all of the plaintiff’s site activity, which ‘‘includes the withdrawal of water from on-site basins,’’ indicating that thedepartmentconsideredtheplaintiff’sactivitiesother than the withdrawals of water for which the plaintiff soughtpermits—itsexcavationandearthremovalactivities—to be properly within the department’s jurisdiction and authority. (Emphasis added.) In the letter, the departmentassertedthat,oncetheplaintiff’swithdrawals of water triggered the department’s jurisdiction, its ‘‘scope of review when determining whether [the plaintiff’s] application is complete is broad as the [d]epartment is statutorily authorized to review, among other factors, the effects [the plaintiff’s] activity may have on wetlands or wildlife . . . [and] the possible environmental impacts of the diversion activity (which, in this case, would be [the plaintiff’s] activity at all five sites) . . . .’’ The department then requested even more information for all five of the plaintiff’s permit applications so that it could ‘‘cohesively manage and protect our natural resources.’’ The department’s requests focused almost exclusively on various aspects of the plaintiff’s excavation activities, with the geographic scope of its requests extending to the ‘‘existing limits of the processing and excavation areas and any areas proposed to be disturbed for the duration of the permit.’’15 In addition to the vast amount of information the department requested about the plaintiff’s excavation activities on all five of the properties, the department also requested information specific to the plaintiff’s North Branford facility on two matters. First, the department requested ‘‘[a] wetland[s] mitigation plan to offset the approximately [twelve] acres of inland wetlands that have been destroyed by the post-1990 expansion of the quarry’’ pursuant to permits issued by the North Branford Inland Wetlands and Watercourses Agency (North Branford wetlands agency) in 1974 and 1984. Second, the department requested information about
the plaintiff’s discharge of quarry stormwater authorized pursuant to the plaintiff’s NPDES discharge permit.16 The plaintiff’s application for a renewal and modification of the NPDES permit had been pending before the department since 1998. Following the plaintiff’ssubmissionoftheNorthBranforddiversionpermit application in 2006, the department informed the plaintiff that it would process the NPDES and diversion permit applications concurrently.17 Instead of submitting the requested information, in 2009,theplaintifffiledapetitionforadeclaratoryruling to address the scope of the department’s authority to request information for the plaintiff’s water diversion permit applications.18 The plaintiff sought a ruling by the commissioner as to three questions: (1) as to all five facilities, ‘‘[w]hen processing an application for a water diversion permit, does the [department] have jurisdiction and authority19 to consider all potential environmental resources and issues to the entire site on which the diversion is located, even if those other resources and issues are hydraulically unrelated to the diversion or are committed by statute or regulation to other [department] bureaus or regulatory agencies?’’; (footnote added); (2) as to North Branford property, ‘‘[w]hen an applicant for a water diversion permit already has obtained a local wetlands permit for activitiesthatarelocatedonthediversionsitebutarehydraulicallyunrelatedtothediversion,maythe[department], processing a diversion permit application, demand information regarding such wetlands and regulated activities and regulate those activities again?’’; and (3) astoNorthBranfordproperty,‘‘[m]aythe[department] declinetoprocessordelayprocessinganNPDESpermit renewal on the ground that the applicant has not supplied to the [department] requested additional information regarding a pending water diversion permit application?’’ The plaintiff and the department stipulated to the facts and exhibits to be considered by the commissioner. In the declaratory ruling, the commissioner began by concluding that the first question in the petition had not been framed properly and decided instead to use the department’s October 21, 2008 letter as a reference point for her ruling, though she did not specifically reformulate the petition question. The commissioner then answered all the questions presented by the petition in the affirmative, interpreting the water diversion act as authorizing all of the department’s requests for information in the letter. As to the first question about theinformationrequestedforallfivefacilities,thecommissioner explained that the water diversion act conferred broad authority on the department to request information about activities beyond the specific withdrawalsforwhichtheplaintiffsoughtdiversionpermits becausetheplaintiff’sexcavationactivities,themselves, might be diversions. The commissioner also explained
that, even if the excavation activities were not, themselves,diversions,theywerean‘‘effect’’oftheplaintiff’s proposeddiversionsbecausetheplaintiff’swithdrawals of water facilitated and enabled the plaintiff’s excavation activities, in that the plaintiff would be unable to conduct any of its excavation activities if it did not havethedivertedwateritneededtocoolitsexcavation machines, suppress dust, and wash aggregate. Because the excavation activities were an ‘‘effect’’ of the diversion, the commissioner reasoned that the department could properly request information about the effect of the excavation activities on environmental resources for the entirety of the plaintiff’s proposed excavation sites for the next twenty-five years. Thecommissionerresolvedthesecondpetitionquestion—whether the department could properly request a mitigation plan for wetlands alterations authorized bypriormunicipalwetlandspermitsfortheNorthBranfordproperty—byconcludingthatthedepartmentexercises overlapping jurisdiction with the North Branford wetlands agency and that, therefore, the department could properly request a wetlands mitigation plan. The commissioner reasoned that the water diversion act grants the department ‘‘separate and broad authority to review the wetlands impacts of diversion activities,’’ asevidencedbythelegislature’sfailuretoincludeactivities already permitted by local wetlands commissions among the exemptions from the water diversion act. Finally, as to the third question, the commissioner concluded that, under § 22a-430-4 (d) (3) of the Regulationsof ConnecticutState Agencies,a regulationpromulgated by the department in implementing the clean water act, the department could delay processing a completed NPDES permit application when a related permit application is incomplete or may be denied. The commissioner reasoned that, because the water withdrawn from the North Branford quarry pursuant to the water diversion permit would be discharged pursuant to theNPDES permit,the twopermit applicationswere related for purposes of the regulation. The plaintiff appealed from the declaratory ruling to the trial court pursuant to §§ 4-176 (h) and 4-183 (a). As to all three questions, the trial court construed the water diversion act in a similar manner to how the commissioner had construed it. The trial court determined,however,thatthecommissionerneededtomake findings as to ‘‘where these specific diversions are for thepurposesofdiscovery’’withrespecttotheplaintiff’s diversion permit application.20 Accordingly, the trial court rendered judgment dismissing the plaintiff’s appeals as to the second and third questions but remanded the case to the commissioner for ‘‘factual findings on the plaintiff’s diversion permit application’’ astothefirstquestion.Thisappealfollowed.Additional facts will be set forth as needed.
On appeal to this court, the plaintiff claims that the trialcourtimproperly:(1)construedthewaterdiversion act as essentially granting the department jurisdiction and authority over all environmental resources and issues, including the plaintiff’s excavation activities, pertaining to the entirety of its properties, even though a large percentage of those resources and issues are, accordingtotheplaintiff,hydraulicallyunrelatedtothe proposed water diversions for which the plaintiff has requested permits; (2) construed the water diversion act as allowing the department to effectively reopen duly issued municipal wetlands permits by demanding a wetlands mitigation plan for excavations previously authorizedbysuchpermits;and(3)affirmedthedepartment’sauthoritytodelayprocessingtheplaintiff’sapplication to renew its NPDES permit until it provided the department with the information requested in connection with its permit applications under the water diversion act. The commissioner urges this court to affirm the trial court’s judgment deeming the commissioner’s interpretation of the water diversion act proper as to all three questions. We conclude that, in the context of the plaintiff’s applications,thewaterdiversionactdoesnotauthorize the department’s attempts to seek information about, and thereby effectively regulate, the plaintiff’s excavationactivitiesasdiversionsseparateandapartfromthe withdrawals for which the plaintiff seeks permits, nor does it authorize the department’s attempts to regulate the plaintiff’s excavation activities as an ‘‘effect’’ of the proposed diversions. We also agree with the plaintiff that the water diversion act does not authorize the department to request a wetlands mitigation plan for thealterationofwetlandsauthorizedbypriormunicipal wetlandspermitsandthatthedepartmentmaynotdelay processingtheplaintiff’sNPDESpermitapplicationdue to the pending water diversion permit application. We will address each claim in turn, beginning with the threshold issue of subject matter jurisdiction. II FINAL JUDGMENT As a threshold issue of appellate jurisdiction, we discusswhetherthetrialcourt’sjudgmentisanappealable final judgment in light of its remand order for factual findingsastothefirstquestioninthedeclaratoryruling. See State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983) (‘‘[b]ecause our jurisdiction over appeals . . . is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim’’). Both parties contend that the decision of the trial court constitutes a final judgment for the purpose of appeal, and we agree. The appeal in the present case is governed by the
Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. It is well settled that ‘‘[t]he legislature may . . . deem otherwise interlocutory actions of the trial courts to be final judgments, as it had done by statute in limited circumstances.’’ Abreu v. Leone, 291 Conn. 332, 338, 968 A.2d 385 (2009); see, e.g.,GeneralStatutes§ 4-183(j)(deemingremandorder issued by trial court to be final judgment where trial courtfinds‘‘thatsubstantialrights’’ofpersonappealing ‘‘have been prejudiced’’ by error in administrative ruling). ‘‘Alternatively, the courts may deem interlocutory orders or rulings to ‘have the attributes of a final judgment’ if they fit within either of the two prongs of the test set forth in [Curcio]. . . . Under Curcio . . . interlocutory orders are immediately appealable if the order or ruling: (1) terminates a separate and distinct proceeding or (2) so concludes the rights of the parties thatfurtherproceedingscannotaffectthem.’’(Citations omitted.) Abreu v. Leone, supra, 338–39. If an administrativeappealgovernedbytheUAPAcontainsaremand order,inquiryisproperlymadeintowhethertheremand falls within § 4-183 (j), rendering it a final judgment by statute ‘‘irrespective of both the nature of the remand andtheadministrativeproceedingsthatareexpectedto followit.’’(Emphasisomitted;internalquotationmarks omitted.) Hogan v. Dept. of Children & Families, 290 Conn. 545, 558, 964 A.2d 1213 (2009), quoting Commission on Human Rights & Opportunities v. Board of Education, 270 Conn. 665, 675, 855 A.2d 212 (2004). When the remand falls outside of § 4-183 (j), a final judgment exists if the decision rendered by the trial court satisfies either prong of Curcio. See Hogan v. Dept. of Children & Families, supra, 556–60. In the present case, irrespective of whether the remand would fall within § 4-183 (j), the trial court’s decision plainly satisfies Curcio. Although the trial court ordered a remand for factual findings, it affirmed the declaratory ruling in all substantive respects.21 The trial court’s unqualified agreement with the commissioner’s interpretation of its authority as set forth in declaratory ruling, coupled with the fact that any proceedingsuponremandwouldhaveinvolvedtheapplication of that interpretation, leads us to conclude that thetrialcourtimplicitlydeterminedthattherecordwas sufficient to provide a proper basis for the issuance of the declaratory ruling. As aptly noted by the plaintiff, ‘‘[t]hat the trial court fashioned a remand order purporting to govern further inquiry into regulated diversionsdoesnotunderminethefinalityofitsadjudication of the scope of the act under which that inquiry would occur.’’ Therefore, we conclude that the trial court’s judgment, as a whole, had so concluded the rights of the parties such that further proceedings could not affectthemasitpertainedtothedeclaratoryrulingand, thus, constitutes a final judgment under the second prong of Curcio.
III STANDARD OF REVIEW Wenextsetforththestandardofreview.‘‘Administrative agencies . . . are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon . . . the statutes vesting them with power and they cannot confer jurisdiction upon themselves. . . . We have recognized that [i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. . . . Itcannotmodify,abridgeorotherwisechangethestatutory provisions . . . under which it acquires authority unlessthestatutesexpresslygrantitthatpower.’’(Internal quotationmarks omitted.) Celentano v. Rocque, 282 Conn. 645, 654, 923 A.2d 709 (2007). We must therefore interpret the statutory provisions under which the department acquires its authority. The scope of the department’s authority under the water diversion act presents a question of law. ‘‘Cases that present pure questions of law . . . invoke a broader standard of review than is . . . involved in deciding whether, in light of the evidence, the agency hasactedunreasonably,arbitrarily, illegallyorinabuse of its discretion.’’ (Internal quotation marks omitted.) Dept. of Public Safetyv. Freedom of Information Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010). ‘‘Although the interpretation of statutes is ultimately a question of law . . . it is well established practice of thiscourttoaccordgreatdeferencetotheconstruction given[a]statutebytheagencychargedwithitsenforcement.’’ (Internal quotation marks omitted.) Celentano v. Rocque, supra, 282 Conn. 652. ‘‘We have determined [however] that the traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] . . . a governmental agency’s time-tested interpretation . . . . [A]n agency’s interpretationof astatuteis[time-tested] whentheagency’s interpretationhasbeenformallyarticulatedandapplied for an extended period of time, and that interpretation is reasonable.’’ (Citations omitted; footnote omitted; internalquotationmarksomitted.)Hartfordv.Hartford Municipal Employees Assn., 259 Conn. 251, 261–62, 788 A.2d 60 (2002); see also Sarrazin v. Coastal, Inc., 311Conn.581,611n.20,89A.3d841(2014)(‘‘[a]considerationofwhetheraninterpretationistime-testedtakes into account both the length of time since it first was articulatedandthenumberofformaldecisionsapplying that interpretation’’). Thepartiesdonotdisputethatthedepartment’sinterpretation of the water diversion act has never been subjected to judicial scrutiny. The commissioner does claim, however, that the department’s interpretation
of the water diversion act should be entitled to some measureofdeferencebythiscourtbecause,inapplying the water diversion act,it has: (1) consistently required information from other applicants for water diversion permits that was similar to the category and extent of information requested in the October 21, 2008 letter; and (2) consistently evaluated the direct and indirect effects of proposed diversions in acting on diversion permitapplications.Insupportofthisclaim,thedepartment submitted excerpts from various permit review processes,includingcorrespondenceandotherinternal memoranda, for a variety of applicants seeking diversion permits from the department.22 Although the commissioner pointed to the department’s ‘‘consistency in requesting comprehensive site information before issuing diversion permits’’ from other ‘‘applicants for largescale projects that require diversion permits,’’ the trial court concluded that the department’s interpretation was not entitled to special deference and we agree. The department’s interpretations of the water diversion act in the record do not amount to a time-tested interpretation because they have been neither formally articulatednoradoptedpursuanttoformalrule-making or adjudicatory procedures; they include private correspondenceandinternaldocuments.Accordingly,wedo not accord them any deference. See Sarrazin v. Coastal, Inc., supra, 311 Conn. 610–11 (‘‘[t]he requirements that an interpretation be ‘formally articulated and applied for an extended period of time’ provide a properbasisfordeferencebecause,likejudicialreview, they ensure that the interpretation is articulated through procedures that allow for robust adversarial testing andin amanner thathas generalapplicability’’). Because we need not accord the department any deference in construction of the statutory provisions at issue, our review is plenary. Celentano v. Rocque, supra,282Conn.654.‘‘Theprocessofstatutoryinterpretation 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 objectiveis toascertain andgive effect tothe apparent intent of the legislature. . . . In seeking to determine [the] meaning [of the statutory language] . . . [we] first . . . consider the text of the statute itself and its relationship to other statutes.’’ (Internal quotation marks omitted.) Sams v. Dept. of Environmental Protection, 308 Conn. 359, 377–78, 63 A.3d 953 (2013); see also General Statutes § 1-2z. ‘‘Furthermore, we interpret statutory language in light of the purpose andpolicybehindtheenactment.’’WillowSpringsCondominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). Since all issues discussed involve our statutory construction of the water diversion act and other relevant environmental statutes and regulations, our standard of review is
the same for all three questions. IV SCOPE OF THE DEPARTMENT’S AUTHORITY UNDER THE WATER DIVERSION ACT Turning to the merits of the plaintiff’s appeal, the plaintiff first claims that the commissioner and the trial court interpreted the department’s authority under the waterdiversionacttoobroadly.Inessence,theplaintiff claimsthatthedepartmentmaynotrequestinformation concerning,orregulate,theplaintiff’sexcavationactivities in the context of its applications for permits for withdrawals of water. Thecommissioner responds that thiscourtshouldaffirmtheinterpretationsofthewater diversion act endorsed by the trial court that would allow it to do so. We discuss, first, whether we must reframetheplaintiff’sfirstpetitionquestion,and,thereafter, our construction of the water diversion act. A Reframing the Question Presented Thequestionasoriginallydraftedbytheplaintiffasks whether the department has jurisdiction and authority ‘‘to consider all potential environmental resources and issues to the entire site on which the diversion is located, even if those other resources and issues are hydraulically unrelated to the diversion or are committed by statute or regulation to other [department] bureaus or regulatory agencies.’’ The commissioner declined to answer the question as framed and instead usedthedepartment’sOctober21,2008letterasareferencepointforthedeclaratoryruling,butdidnotexplicitly formulate a substitute question. The plaintiff generally asserts that any deviation from the question as worded perpetuates the mischaracterization of the issue before the court. We conclude that, for us to fairly address the parties’ claims, we must reframe the question presented. The first question presented in the plaintiff’s petition for a declaratory ruling, as drafted by the plaintiff, is inaccurate because we cannot answer it without: (1) assuming that the department has, through its actions, attempted to consider every potential environmental resource and issue on the literal entirety of each of the plaintiff’s sites; or (2) assuming the question’s own conclusion because the question presupposes that all information requested by the department is, in fact, ‘‘hydraulically unrelated’’ to the proposed diversion, a term that itself is subject to various meanings. The commissioner, the trial court, and even the plaintiff have not attempted to answer the question as drafted becauseitdoesnotfullyreferencethefactsandcircumstances of the present case, nor could its answer properly address the evolving arguments of the parties to these proceedings.23
The crux of the parties’ dispute centers around the department’s requests in the October 21, 2008 letter, specifically the department’s requests for information about the plaintiff’s excavation activities, which resulted in the department’s request for an almost sitewideresourceinventory.Wegleanfromthedeclaratory rulingthatthecommissionerreframedthefirstquestion presented in the plaintiff’s petition to reference the department’s October 21, 2008 letter, addressing whether, in the context of the permit review process for the plaintiff’s applications for the withdrawal of water, the water diversion act authorizes the departmenttorequestinformationconcerning,andessentially regulate, the plaintiff’s excavation activities and the environmental effects of those activities. In light of the commissioner’sconclusionthatitcouldnotaddressthe question as framed and both parties’ evolving positions during the course of these proceedings, we adopt this iteration of the question. See Gianetti v. Norwalk Hospital, 211 Conn. 51, 57, 557 A.2d 1249 (1989) (reframing reservation requested by parties pursuant to General Statutes § 52-235 because questions reserved were framed too broadly and noting that it was proper because of ‘‘the importance of the issues involved and the fact that the claims of the parties have been fully presented in argument and brief’’ [emphasis omitted; internal quotation marks omitted]), quoting General Motors Corp. v. Mulquin, 134 Conn. 118, 133, 55 A.2d 732(1947); Republican Party of Connecticut v. Merrill, 307 Conn. 470, 473 n.3, 55 A.3d 251 (2012) (reframing question presented in declaratory action treated as administrative appeal pursuant to § 4-176 [a] to ‘‘more accurately reflect the question presented in light of the arguments’’ of parties). B Construction of the Water Diversion Act We now turn to the merits of the plaintiff’s first petition question: whether, in the context of the permit review process for the plaintiff’s applications for withdrawals of water, the water diversion act authorizes the department to request information concerning and, in essence, regulate the plaintiff’s excavation activities and the environmental effects of those activities. The plaintiff contends that the department is limited to requesting information relating only to the diversions for which permits are sought and the effects of those specific diversions on water resources or matters related thereto, as set forth by statute, within the area of influence of the proposed diversions. The commissionerassertsthattheplaintiff’ssubmissionoftheapplications gave the department jurisdiction and authority overtheexcavationactivitieseitherasdiversionsthemselvesoraseffectsoftheproposeddiversions.Although we do not wholly endorse either party’s construction, we conclude that this question must be answered in
the negative on the basis of the water diversion act, viewed in its entirety. Webeginwithadiscussionoftheregulatoryscheme. We then explain why this scheme does not authorize the department to regulate the plaintiff’s excavation activities either as: (1) diversions distinct from those for which the plaintiff has sought permits; or (2) an ‘‘effect’’oftheplaintiff’sproposedwithdrawalsofwater because such excavation activities are facilitated and enabled by the plaintiff’s use of the withdrawn water. We then explain why the plaintiff’s ‘‘area of influence’’ metric does not define the limits of the department’s authority and, thereafter, discuss the department’s reliance on this court’s decision in Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 977 A.2d 127 (2009). Finally, we acknowledge the limits of this opinion. As we explained previously in this opinion, the purpose of the water diversion act is to preserve water, ‘‘a precious, finite and invaluable resource upon which there is an ever increasing demand for present, new and competing uses . . . .’’ General Statutes § 22a-366. The legislature has ‘‘declared that the diversion of the waters of the state shall be permitted only when such diversion is found to be necessary, is compatible with long-range water resource planning, proper management and use of the water resources of Connecticut andisconsistentwithConnecticut’spolicyofprotecting its citizens against harmful interstate diversions . . . .’’ General Statutes § 22a-366. The water diversion act’s definition of ‘‘[d]iversion’’ isundeniablybroad:‘‘anyactivitywhichcauses,allows orresultsinthewithdrawalfromorthealteration,modification or diminution of the instantaneous flow of the waters of the state . . . .’’ (Emphasis added.) General Statutes § 22a-367 (2); see also General Statutes § 22a367 (4) (‘‘[i]nstantaneous flow’’ means ‘‘the volume of water that would occur in waters at a given point at any given moment’’); General Statutes § 22a-367 (9) (‘‘[w]aters’’ means ‘‘all tidal waters, harbors, estuaries, rivers,brooks,watercourses,waterways,wells,springs, lakes, ponds, marshes, drainage systems and all other surface or underground streams, bodies or accumulations of water, natural or artificial, public or private, which are contained within, flow through or border upon this state or any portion thereof’’). Any activity thatalters,atanymoment,thevolumeofanyaccumulationofwatercontainedwithin,flowingthrough,orbordering upon this state constitutes a diversion. Thelegislaturehasexempted,however,certaindiversions from the requirements of the water diversion act. See General Statutes § 22a-377 (a) (setting forth statutory exemptions);24 General Statutes § 22a-377 (b) (empoweringcommissionertoadoptadditionalexemptions‘‘whichwouldnotbythemselvesorincombination
with each other have a substantial effect on the longrangeplanningforandallocationofthewaterresources of the state’’); Regs., Conn. State Agencies § 22a-377 (b)-1 (setting forth additional regulatory exemptions). In managing the nonexempt diversions that require the department’s oversight, the water diversion act requires the reporting to the department of operating data about the water usage of each diversion so that the department may determine, before issuing new diversion permits in any particular area, whether additional diversions will overburden the water resources in that area.25 Indeed, before establishing the duration ofeachdiversionpermit,thedepartmentmustconsider ‘‘theextenttowhichthewatersaffectedbysuchpermit have already been allocated; [and] the uses to which suchpreviously-allocatedwatersareput,includingnonconsumptive uses . . . .’’ Regs., Conn. State Agencies § 22a-377 (c)-2 (h) (1) (A) and (B).26 Two statutory provisions directly bear on the information that the department may request to decide whether to grant a permit. First, § 22a-369 requires a permit applicant to submit specific information to the department, which, broadly characterized, relates to theproposeddiversionitself,theeffectoftheproposed diversion on water resources, and the alternatives, if any, to the proposed diversion. See General Statutes § 22a-369 (requiring information regarding, inter alia: ‘‘use ofthe divertedwater’’; ‘‘descriptionof theexisting water system where the diversion is proposed’’; ‘‘locations of withdrawals’’; ‘‘quantity, frequency and rate of water the applicant proposes to divert’’; ‘‘length of time for which the diversion permit is sought’’; information about ‘‘public water supplies, water quality, wastewatertreatmentneeds,floodmanagement,water-based recreation, wetland habitats, waste assimilation, agriculture, fish and wildlife and low flow requirements’’; ‘‘[c]onservation measures . . . and the applicant’s long-range water conservation plan’’).27 Second, § 22a373 addresses factors that the department must consider in acting on a completed water diversion application, which principally relate to water resources. See GeneralStatutes§ 22a-373(b)(requiringreviewofrelevant considerations, which include: ‘‘public water supply . . . safe yield of reservoir systems and reservoir and groundwater development’’; ‘‘existing and planned water uses in the area affected such as public water supplies, relative density of private wells, hydropower, flood management, water-based recreation, wetland habitats, waste assimilation, and agriculture’’; ‘‘longrange planning, management, allocation and use of the water resources of the state’’; ‘‘existing water conditions’’; ‘‘effect, including thermal effect, on fish and wildlife as a result of flow reduction, alteration or augmentation’’;‘‘navigation’’;‘‘conservation’’).28 Inaddition to these enumerated matters, the water diversion act vests the department with a broad, residual grant of
authoritytorequiretheapplicanttosubmitanyinformation that it ‘‘deems necessary to fulfill the purposes of [the water diversion act]’’; General Statutes § 22a-369; and to consider ‘‘any additional information that [it] deemsnecessarytocarryoutthepurposesof[thewater diversion act].’’ General Statutes § 22a-371 (a). Thewaterdiversionactprovidesthedepartmentwith a variety of other powers to implement its provisions, includingenforcementpowers.Ifanypersonormunicipality conducts activities that constitute a diversion withoutapermit,thelegislatureempoweredthedepartmentto‘‘requesttheAttorneyGeneraltobringanaction . . . to enjoin [any person or municipality violating the water diversion act] from continuing such violation’’ and setforth civilpenalties forsuch violations.General Statutes § 22a-376. The legislature also empowered the department, after a permithas been issued, to ‘‘periodically investigate and review those diversions which are taking place pursuant to a permit issued in accordance with [the water diversion act]. If he determines that there is any violation of the terms, limitations or conditions of the permit, he may suspend or revoke said permit in accordance with the provisions of Chapter 54 or may request the Attorney General to bring an action to enjoin such violation in accordance with the provisions of subsection (a) of section 22a-376.’’ General Statutes§ 22a-375 (a);see Regs.,Conn. StateAgencies § 22a-377 (c)-1 (b) and (c) (prohibiting holders of permitted or registered diversions from increasing amount of water to be diverted). In addition, § 22a376 (c) of the water diversion act expressly makes an applicant subject to the criminal penalties of §§ 53a155 to 53a-157b, inclusive, if the applicant ‘‘knowingly makes any false statement, representation or certification in any application, record, report, plan, or other document filed or required to be maintained . . . or who falsifies, tampers with or knowingly renders inaccurate any monitoring or method required to be maintained . . . .’’ Havingsetforththeparametersofthewaterdiversion act as it bears on the issues before us, we now address the question of whether the department exceeded its authority in requesting information about the plaintiff’s excavation activities in the October 21, 2008 letter. The commissioner first claims that the broad definitionsof‘‘diversion,’’‘‘waters,’’and‘‘instantaneousflow’’ in § 22a-367 empower the department to look beyond the diversion identified by the applicant in its permit application and examine, byway of §§ 22a-369 and 22a373, all aspects of the plaintiff’s activities that may constitute diversions, which may include the plaintiff’s excavation activities. We conclude that, even if we assume,withoutdeciding,thattheplaintiff’sexcavation activities could constitute a diversion that is not exempted from the permitting requirements; see foot
note21ofthisopinion;thewaterdiversionactgenerally does not empower the department to request information to determine the extent and environmental effects of diversions other than those for which a permit is sought. Although the water diversion act defines a ‘‘[d]iversion’’ as ‘‘any activity which causes, allows or results in the withdrawal from or the alteration, modification or diminution of the instantaneous flow of the waters of the state’’; (emphasis added) General Statutes § 22a367 (2); §§ 22a-369 and 22a-373 of the water diversion actdonotempowerthedepartmenttorequestinformationabout‘‘anydiversion’’or‘‘allpotentialdiversions.’’ Rather, the water diversion act empowers the department to request and consider information about ‘‘the diversion,’’ ‘‘the diverted water,’’ ‘‘withdrawals and dischargesofwaterthe applicantproposestodivert,’’‘‘the diversion permit’’; (emphasis added) General Statutes § 22a-369; and ‘‘the proposed diversion.’’29 (Emphasis added.) General Statutes § 22a-373. In other words, §§ 22a-369 and 22a-373 authorize the department to request information from an applicant about the specific,proposedactivitywhichcauses,allows,orresults in the withdrawal from or the alteration, modification ordiminutionoftheinstantaneousflowofthewatersof thestateforwhichthe applicanthassoughtapermit.30 To construe the water diversion act, as the commissioner has, to allow the department to request information about additional diversion activities for which the plaintiffhas not soughtpermits wouldfailtogiveeffect to the limiting language—’’the diversion’’ and ‘‘of the proposed diversion’’—the legislature specifically chose in §§ 22a-369 and 22a-373. See Buttermilk Farms, LLC v. Planning & Zoning Commission, 292 Conn. 317, 330–31, 973 A.3d 64 (2009) (concluding that limiting language—’’thelandtobesubdivided’’—prohibitedzoning commission from denying developer’s subdivision application for failure to include off-site sidewalks because to conclude otherwise ‘‘would, in effect, have to read the limiting language of that provision out of the statute . . . [and would extend power to the commission] by construction beyond the fair import of the languageoftheenablingstatuteortoincludebyimplication that which is not clearly within the express terms of that statute’’ [citations omitted; internal quotation marks omitted]). It is a ‘‘basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions. . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.’’ (Internal quotation marks omitted.)FelicianSistersofSt.FrancisofConnecticut, Inc. v. Historic District Commission, 284 Conn. 838, 849–50, 937 A.2d 39 (2008). That is not to say, however, that the department
would be constrained to accept the applicant’s characterization of the diversion solely as it appears in the permit application. The language granting the department authority to request any information about a proposeddiversionthatheorshedeemsnecessarytofulfill the purposes of the water diversion act; see General Statutes § 22a-369; may reasonably be interpreted to encompass information necessary to determine whetheranapplicant’scharacterizationoftheproposed diversionisaccurateandcomplete.Cf.UnistarProperties,LLCv.Conservation&InlandWetlandsCommission, supra, 293 Conn. 98–99 (wetlands commission statutorily authorized to seek wildlife inventory to determine impact of plaintiff’s activity not required to credit plaintiff’s expert testimony as to lack of such impact or to disprove plaintiff’s position in order to obtain that inventory). Suppose, for example, that an applicant sought a permit for only one of several withdrawals of water on the same property, all of the withdrawals’ being part of and affecting the same water system. Review of the effects of one withdrawal on this water system might necessitate review of the effects of all withdrawals on the water system insofar as the department might reasonably determine that existence of these similar, yet unpermitted, diversions from the same water system soaffecteditsreviewof thesubmittedapplicationsuch that it could not fairly evaluate the submitted application; the department would likely be entitled to request informationtoensuresufficientreviewofthesubmitted application. These requests are reasonable interpretations of the language of the water diversion act, which, relating to this example, authorizes the department to request a ‘‘description of the existing water system where the diversion is proposed’’; General Statutes § 22a-369 (3); and requires the department to consider, before acting on a completed permit application, ‘‘[t]he effectoftheproposeddiversiononexistingandplanned water uses in the area affected’’ and ‘‘[t]he effect of the proposed diversion on the existing water conditions . . . .’’ General Statutes § 22a-373 (b) (2) and (5).31 The department’s authority to request information, pursuant to §§ 22a-369 and 22a-373, about diversion activityotherthanthediversions forwhichtheplaintiff has sought permits extends only to information necessary for sufficient review of the applications—and diversions—under review. This is the very hydraulic relationship that the plaintiff claims the department should be required to allege or establish before it may request information about additional diversions, if any, on the plaintiff’sproperties. After all, themere fact that more than one diversion exists or is being created on the same property does not make all diversions part of the same water system, as in the previous example, or render review of the additional diversions so necessary in terms of evaluating the submitted application by ref
erence to the relevant factors set forth in the water diversion act such that the department cannot fairly evaluate the submitted application. In no phase of the proceedings in the present case, however, has the department ever asserted that its authority for requesting information relating to the plaintiff’s excavation activities is due to any such inextricablehydraulicconnectiontotheplaintiff’sproposed withdrawals, despite the plaintiff’s consistent position that any such hydraulic connection was absent. Moreover, the information requested in the October 21, 2008 letter on its face does not appear to be intended to elicit whether such a connection exists. Rather, the information appears to treat the excavation activities as independent diversions, connected to the proposed diversions only by the fact that they facilitate those activities. Such a request goes too far. Merely because an applicant engages in an activity that gives rise to the need for, or utility of, distinct diversions on the same property does not mean that the water diversion act empowers the department to utilize its authority in the permit review process for one diversion to regulate the other diversion. Put anotherway,merelybecausethedepartmenthasjurisdiction over all activities that qualify as diversions pursuant to the water diversion act does not mean that the departmentproperlyexercisestheauthority torequest information about one diversion during the permit review process of the other diversion as if both were includedintheapplication.Seefootnote19ofthisopinion. Indeed, if an owner or operator creates a distinct diversion for which a permit is required, but none is sought, the department isnot left without recourse; the statutory scheme empowers the department to take enforcement action. See General Statutes § 22a-376. Thus,inthecontextoftheplaintiff’sspecificapplications to withdraw water from basins and wells, to the extent that the department attempts to regulate the plaintiff’s excavation activities as diversions in and of themselves, or determine whether they are diversions, byexercisingpowersgrantedtoittoreviewanapplicationfortheplaintiff’sproposedwithdrawals,thedepartment may not rely on §§ 22a-369 and 22a-373 for such authority. We next turn to the commissioner’s alternative basis for its requests for information about the plaintiff’s excavation activities in the October 21, 2008 letter, namely, that §§ 22a-369 and 22a-373 provide authority to request information about the plaintiff’s excavation activitiesasan‘‘effect’’oftheplaintiff’sproposeddiversions. Specifically, the commissioner claims that, because §§ 22a-369 and 22a-373 authorize the department to request information about the effect of the plaintiff’s withdrawals of water, and because the plaintiff would be unable to excavate absent the use of the
diverted water to cool its machines, suppress dust, and wash aggregate, the department may properly request informationabouttheplaintiff’sexcavationactivitiesas an effect of the proposed diversion. The commissioner further contends that §§ 22a-369 and 22a-373 authorize it to request information about the environmental effectsofanyactivityfacilitatedorenabledbythewithdrawn, diverted water. The plaintiff responds that the department’s authority to request information relating to the effect of the proposed withdrawal is limited by the enumerated items in each subsection of the water diversion act addressing the ‘‘effect’’ of the diversion, or matters related thereto that further the purpose of thewaterdiversionact,andthatitsexcavationactivities do not fall within those parameters. We agree with the plaintiff. The ‘‘effect of the proposed diversion’’ is addressed in the statutory scheme in two places. Section 22a369 (7) of the water diversion act first empowers the department to request information about ‘‘[t]he effect of the proposed diversion on public water supplies, water quality, wastewater treatment needs, flood management, water-based recreation, wetland habitats, waste assimilation, agriculture, fish and wildlife and low flow requirements . . . .’’ Section 22a-373 of the water diversion act then empowers the department to consider, before taking action on a completed application, information about ‘‘[t]he effect of the proposed diversion’’ on enumerated considerations relating to waterresources.SeeGeneralStatutes§ 22a-373(b)(1), (2), (5), (6), and (7) (referencing the ‘‘effect’’ of the proposed diversion).32 Sections 22a-369 and 22a-373 thus empower the department to request information about the effect of the proposed diversion on something, specifically, water resources and other matters related thereto within the scope of the purpose of the water diversion act. Requiring an applicant to submit such information enables the department to determine whether a proposed diversion potentially could have an adverse effect on those water resources or matters related thereto, enumerated or otherwise, within the scopeofthepurposeofthewaterdiversionact.Indeed, it is evident that the thrust of the water diversion act— the permitting requirements, the reporting requirements, and the penalty provisions—is concerned with changes in the flow of water that affect the quantity and quality of water resources, and the activities and users dependent on those resources. See General Statutes § 22a-366 (‘‘the waters of Connecticut are a precious, finite and invaluable resource upon which there isaneverincreasingdemandforpresent,newandcompeting uses’’). Under the facts of the present case, the department’s relianceontheauthoritygrantedby§§ 22a-369and22a373 to request information about the plaintiff’s excavation activities as an ‘‘effect of the proposed diversion’’
is misplaced for several reasons. First, the plaintiff’s excavation activities are not a water resource or a matter related thereto; it is not similar to the enumerated items upon which the effect of the diversion is to be measured. See footnote 32 of this opinion. And even if it were, the department does not seek to determine the effect of the plaintiff’s proposed diversions, namely, its withdrawals of water, on the plaintiff’s excavation activities; instead, the department seeks to determine theeffectoftheplaintiff’sexcavationactivitiesonenvironmental resources. Second, to the extent the commissioner claims that the plaintiff’s excavation activities are, themselves, an ‘‘effect’’ofthewithdrawalsofwaterbecausesuchactivities are facilitated or enabled by such withdrawals, such an interpretation requires this court to consider the excavation activities as requiring the use of and therefore causing the proposed withdrawals, and yet toconsiderthosesameexcavationactivitiesasresulting from and being the effect of the proposed withdrawals. Even assuming that this logically inconsistent interpretation of cause and effect were reasonable, the legislature knew how to use language to empower the department to request information about indirect or secondary effects of a regulated activity, as well as effects of additional activities that are facilitated or enabled by a regulated activity. See, e.g., General Statutes § 22a-41 (a) (6) (requiring department, in carrying out Inland Wetlands and Watercourses Act [wetlands act], General Statutes § 22a-36 et seq., to consider ‘‘[i]mpacts of the proposed regulated activity on wetlands or watercourses outside the area for which the activity is proposed and future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity and which may have an impact on wetlands or watercourses’’ [emphasis added]). If the legislature had intended the water diversion act to confertheauthoritytoconsiderorregulateactivitiesfacilitated or enabled by a proposed diversion whose sole relation to such diversion is the use of the diverted water at any point during the facilitated activity, it certainly could have inserted language to that effect. CompareGeneralStatutes§ 22a-41(a)(6)(addressingunder wetlands act ‘‘future activities associated with, or reasonably related to, the proposed regulated activity which are made inevitable by the proposed regulated activity’’),withGeneralStatutes§ 22a-369(2)(requiring diversion permit application to submit information on ‘‘use of diverted water’’). To interpret the water diversion act as allowingthe department to request information about the effect of the excavation activities on waterresourcesormattersrelatedtheretowouldeffectively result in an end run around the requirement that the department first determine whether the excavation activitiesare,themselves,diversionsforwhichapermit
is required.33 In the absence of explicit language to that effect,wewillnotpresumethatthelegislatureintended the water diversionact to confer whatwould be almost limitless authority. Cf. AvalonBay Communities, Inc. v. Inland Wetlands Commission, 266 Conn. 150, 165, 832 A.2d 1 (2003) (‘‘[i]f we were to interpret the [inland wetlands and watercourses] act as authorizing the denial of a permit due to development in the upland areas, the only consequence of which as it relates to wetlands is the reduction in a wetland obligate species, the commission’s jurisdiction would be limitless’’). Third, the department’s interpretation of § 22a-369 appears in tension with its own regulation, which requires it to evaluate the effect of the proposed diversion under § 22a-369 (7) ‘‘using stream flows, where applicable, with [a series of] recurrence intervals . . . .’’ Regs., Conn. State Agencies § 22a-377 (c)-2 (a) (2). The department does not purport to justify its requestsforinformationabouttheplaintiff’sexcavation activities as the means by which it intends to consider stream flows as required by this regulation.34 Accordingly, we conclude that the water diversion act does notauthorizethedepartment’srequestsforinformation about the plaintiff’s excavation activities and the environmental effects thereof as ‘‘effects’’ of the plaintiff’s proposed diversions. Finally, to the extent that the commissioner relies on the residual grant of authority to request information necessary to fulfill the purposes of the water diversion act;seeGeneralStatutes§ 22a-369;thatgrantofauthority cannot be read so broadly as to render the specific grants of authority superfluous.35 Our construction of the water diversion act tethers that authority to the diversion at issue, its effects on water resources, and thosedependentonsuchresources,consistentwiththe purposes of the water diversion act. Although we conclude that the excavation activities cannotberegulatedasan‘‘effect’’oftheproposeddiversions, we also are compelled to note that we do not endorse the plaintiff’s view that the proposed diversion’s ‘‘area of influence’’ defines the limits of the department’s authority in properly considering the diversion’s effects. The term ‘‘area of influence’’ does not appear in the water diversion act or the regulations promulgated thereunder. Rather, it appears in a regulation addressing a different, and very specific, subject matter: mapping wells in stratified drift aquifers. See Regs., Conn. State Agencies § 22a-354b-1 (a) (3).36 Althoughthereisanisolatedreferenceinawaterdiversion regulation to that aquifer mapping regulation; see Regs., Conn. State Agencies § 22a-377(c)-2 (a) (1); it is clear that this single reference is not intended to incorporate the area of influence metric into the water diversionactasauniversalsubstantiveelement.Rather, it is intended to address the limited situation in which
a diversion might impact the boundaries of an area subjecttotheaquifermappingrequirements.SeeRegs., Conn. State Agencies § 22a-377(c)-2 (a) (1) (‘‘[i]f the proposed diversion involves a withdrawal of ground water and can reasonably be expected to change the boundariesofanareaof contributionorrechargeareas of a well field as delineated on a Level A Map approved under [General Statutes §] 22a-354d . . . the applicant shall submit a revised Level A Map prepared in accordance with section 22a-354b-1 of the Regulations of Connecticut State Agencies’’). Simply put, there is no basis to apply ‘‘area of influence’’ to diversions generally. Although the plaintiff contends that some physical limitation must restrict the department’s authority, whether area of influence or otherwise,37 we may not engraft a limitation on the department’s authority that is not so provided. See AvalonBay Communities, Inc. v. Inland Wetlands Commission, supra, 266 Conn. 164 (‘‘[a]bsent such language by the legislature [in the present act], this court cannot engraft amendments into the statutory language’’ [internal quotation marks omitted]). Although the preceding analysis disposes of the parties’ claims, because the trial court and the commissioner relied heavily on this court’s decision in Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, supra, 293 Conn. 93, as supporting the department’s authority for its expansive requests for information,webrieflyaddress thatdecision.Thecommissioner claims that Unistar Properties, LLC, supportsthedepartment’sauthoritytorequestinformation abouttheexcavationactivitiesasdiversionsthemselves becauseitneednotbebound‘‘merely[by]theparticular withdrawal identified by [the plaintiff]’’ in its applications.ThecommissioneralsoclaimsthatUnistarProperties, LLC, supports the department’s expansive requests about the excavation activities as the ‘‘effect of the proposed diversion’’ because only it, not the plaintiff, determineswhat the ‘‘effects’’ ofthe plaintiff’s proposed withdrawals are. We conclude that, although Unistar Properties, LLC, supportsthe generalpropositionunderlyingthecommissioner’sargument,thatcase is inapposite as applied to the particular information at issue in the present case. In Unistar Properties, LLC, it was undisputed that the agency had statutory authority to request the information required from the applicant. The question at issue in that case was whether the applicant’s submission of expert testimony as to the ultimate question for which the information had been sought could divest the agency of authority to demand the information or could shift the burden to the agency to prove why the information nonetheless was necessary. Id., 106–107, 111–13.38 By contrast, for the reasons previously set forth in this opinion, in the present case, there is no expressorimpliedgrantofauthorityforthedepartment
to request the extent of information at issue. Indeed, the plaintiff does not claim that its submission of informationtothedepartmentsatisfiessomeotherstatutory requirementthatcoulddivestthedepartmentofauthority it already has, but rather claims that the department lacks the authority to request the information in the first instance. Nevertheless,UnistarProperties,LLC,doessupport the commissioner in one limited respect, to which we alreadyhavealluded.Inthatcase,weconcludedthatthe department had the right to make its own independent assessment as to the effect of the applicant’s proposed actions, irrespective of the opinion of the applicant’s expert that the actions would not give rise to the harm at issue. Id., 112. In the present case, as we previously haveindicated,thedepartmentisnotrequiredtoaccept the plaintiff’s application as conclusively complete and accurate. Thus, insofar as the water diversion act requires the department to consider the ultimate questionofwhateffecttheproposeddiversionhasonwater resourcesandothermattersrelatedthereto,thedepartment need not accept the plaintiff’s assertions that any ‘‘effect of the diversion’’ on water resources is limited to the area of influence and that it need not provide information beyond that limit. If the department is of theviewthatinformationbeyondthatlimitisnecessary to determine what effect the proposed diversion has on water resources, the department has authority to requestinformationaboutwaterresourcesbeyondsuch area. In light of the expansive requests that were made inthepresentcase,however,wecautionthat,whatever metricisproperfordetermininghowmuchinformation the department may request, there are limits to the department’s reasonable exercise of such authority to demand information of an applicant. See id., 111 n.15 (‘‘[w]ith respect to requestsfor inventories of plant and animal species outside a regulated area, there may be a situation in whichthe distance between the regulated area and the areas on the property for which an inventory is requested is so remote and makes it so unlikely that the activity could have any effect on the wetlands thatitwouldbearbitraryandcapriciousforthecommissiontoimposesuchademandonanapplicant’’[emphasis in original]).39 Finally, in light of the procedural posture of the present case, we clarify what our decision does not do. Thisdecisiondoesnot,nor couldit,determinewhether the information submitted by the plaintiff in support of its applications—both its initial submissions and its supplemental submissions—is sufficient, or whether the plaintiff will ultimately be entitled to the water diversionpermits.Thisappealisneitheranappealfrom the denial of an application for a permit because it was deemed incomplete by thedepartment; see, e.g., id., 93; nor an appeal from the denial of an application on its merit. See, e.g., AvalonBay Communities, Inc. v.
Inland Wetlands Commission, supra, 266 Conn. 150. Nothinginthisdecisionshouldbeconsideredtodecide whether the department, in implementing the water diversion act in other factual scenarios, may regulate excavation activities as a ‘‘diversion,’’ whether any exemptions apply to these activities; see footnote 21 of this opinion; or whether other agencies’ jurisdiction over these activities is concurrent or overlapping. See Sams v. Dept. of Environmental Protection, supra, 308 Conn. 391–96; see also footnote 40 of this opinion. In addition,thisappealdoesnotinvolveanydetermination of whether the department may institute enforcement actions against the plaintiff to enjoin those diversions, if any, for which the plaintiff has not sought permits. Instead,ourdecisiondelineatesthescopeofthedepartment’s authority to request information from the plaintiff for the specific diversions under review in these specific permit applications. Only after the permit review process will a record be available for suitable reviewofanyotherissuesleftunresolvedbythisappeal. We therefore conclude that, in the context of the plaintiff’s applications for diversion permits for withdrawalsofwater,thedepartment’sattemptstoregulate the plaintiff’s excavation activities as diversions separateandapartfromthewithdrawalsforwhichtheplaintiff seeks permits or as an ‘‘effect’’ of the proposed diversionsarenotauthorizedbythewaterdiversionact. V AUTHORITY TO REQUEST WETLANDS MITIGATION PLAN Theplaintiffnextclaimsthat,withrespecttoitsNorth Branford facility, the trial court improperly construed the water diversion act as allowing the department to effectively reopen municipal wetlands permits that had been issued by the North Branford wetlands agency in 1974 and 1984, and to a demand wetlands mitigation plan for excavation activities previously authorized by those permits. The commissioner responds that this court should affirm the judgment of the trial court, which determined that the department exercises overlapping jurisdiction with the North Branford wetlands agency and that, absent a specific exemption in the water diversionact, thedepartment mayproperly regulate the impacts of diversion activities on wetlands. We concludethatthewaterdiversionactdoesnotauthorize the department’s request for a mitigation plan from the plaintiff in the present case. The record reveals the following additional facts. In 1974 and 1984, the plaintiff received permits from the North Branford wetlands agency that authorized the plaintiffto‘‘remove[nineteen]areasofinlandwetlands’’ on its North Branford property. Although the record does not indicate the full extent to which the plaintiff actually removed the indicated wetlands, the depart
ment’s October 21, 2008 letter indicated that at least twelve acres of inland wetlands had been removed or affected. Similarly, although the record does not indicate the plaintiff’s current use of the areas at issue, the plaintiff made an unchallenged representation in its brief to this court that ‘‘the authorized work has long since been carried out . . . .’’ In its October 21, 2008 letter, the department requested the following information specific to the plaintiff’s North Branford facility thatitdeemed‘‘necessarytocompletetheapplication’’: ‘‘[a] wetland[s] mitigation plan to off-set the approximately[twelve]acresofinlandwetlandsthathavebeen destroyed by the post-1990 expansion of the quarry . . . .’’ In its declaratory action, the plaintiff asked: ‘‘[w]hen an applicant for a water diversion permit already has obtained a local wetlands permit for activitiesthatarelocatedonthediversionsitebutarehydraulicallyunrelatedtothediversion,maythe[department], processing a diversion permit application, demand information regarding such wetlands and regulated activities and regulate those activities again?’’ In the declaratory ruling, the commissioner ruled that, notwithstanding the North Branford wetlands agency’sjurisdictionoverthewetlandsontheplaintiff’s property, the water diversion act independently authorizes the department’s request for information about the wetlands and that, as such, the department can properly request ‘‘information on inland wetlands and watercourses and will likely include information typically provided to a local wetlands commission.’’ The commissioner also ruled that the water diversion act authorizes the department to regulate wetlands activities ‘‘because the impacts [of the activities regulated by the water diversion act] may differ from impacts to wetlands from activities regulated by the [wetlands act]’’ and because the legislature failed to exempt from the water diversion act activities already permitted by local wetlands commissions. The trial court agreed. On appeal, the plaintiff claims that the department’s request for a wetlands mitigation plan constitutes a ‘‘reopening’’ of the plaintiff’s municipal wetlands permits and, in essence, regulation of the activities previouslyauthorizedbysuchmunicipalwetlandspermits. The plaintiff claims that allowing the department to reopen its long-expired municipal wetlands permits contravenesthelegislature’s‘‘divisionofresponsibility’’ overwetlandsandincorrectlyassumesthatoverlapping subject matter of the wetlands act and the water diversion act automatically creates concurrent permitting jurisdiction over wetlands. In response, the commissioner claims that its request for a wetlands mitigation plan was independently authorized by the water diversion act notwithstanding any overlapping jurisdiction. Because the plaintiff makes the same reference to hydraulic relationship in its petition question; see part
IV A of this opinion; we again reframe the question presented to become ‘‘whether the water diversion act authorizes the department’s request for the wetlands mitigation plan in its October 21, 2008 letter,’’ and answer that question inthe negative. We conclude that, although the water diversion act authorizes the department to request information about the wetlands on the North Branford property, the department exceeded such authority in requesting the wetlands mitigation plan of the October 21, 2008 letter. We begin with the statutory language. The water diversion act authorizes the department to request and consider information relating to wetlands resources. Specifically, § 22a-369 (7) requires the applicant to submitinformationabout‘‘effectoftheproposeddiversion on . . . wetlands habitats’’ and § 22a-373 (b) (2) requires the department to consider, before acting on a completed permit application, the ‘‘effect of the proposed diversion on existing and planned water uses in the area affected such as . . . wetland habitats . . . .’’ Thecommissionerpointstotheseprovisionsasauthorizing the department to request information about the alteredwetlandsinordertobroadlyperforman‘‘[e]valuation of effects upon wetlands’’ and ‘‘wetlands resources.’’ Our resolution of the first question of the plaintiff’s petition in part IV B of this opinion largely resolves this issue, however. The department has not invoked these provisions in order to determine the effect of the plaintiff’s proposed diversions—the plaintiff’s withdrawals of water—on wetlands habitats; it has invoked them, instead, to determine and mitigate the effect of the plaintiff’sprior excavation activities on wetlandshabitats. Indeed, the October 21, 2008 letter phrases the scope of the request in terms of ‘‘post-1990 expansion of the quarry,’’ not in terms of whether the plaintiff’s withdrawals of water affect (or affected) wetlands resources other than in their role as enabling the plaintifftoexcavate.AsdiscussedinpartIVBofthisopinion, in the context of the permit review process for the plaintiff’s proposed withdrawals of water, the department’s attempt to regulate the plaintiff’s excavation activities,eitherasan‘‘effectoftheproposeddiversion’’ or as a diversion in and of itself, by requesting information about the effect of excavation activities on wetlands exceeds the authority granted by §§ 22a-369 and 22a-373 and constitutes a regulatory end run around the requirement that the department determine, in the first instance, that the plaintiff’s excavation activities constitute diversions. The commissioneradditionally claims,however, that the alteration of wetlands is a diversion in and of itself and, therefore, that the water diversion act grants the department independent authority to request information about the effect of these wetlands alterations on
wetlands resources. As discussed in part IV B of this opinion, however, in the context of the permit review process for the plaintiff’s proposed withdrawals of water,theauthoritytorequestinformationaboutdiversion activities other than the plaintiff’s proposed withdrawals of water is generally limited to requesting information from the plaintiff that is necessary for review of the application submitted, such as requesting information properly within the scope of authority grantedby§§ 22a-369and22a-373todeterminewhether the plaintiff’s characterization of the diversions in the application is accurate and complete. The department doesnotcontendthattheplaintiff’spriorwetlandsalterations constituted a diversion implicating and affecting the same water system as the plaintiff’s withdrawals such that the department cannot fairly evaluate the submitted withdrawal applications without review of these alterations. See footnote 31 of this opinion. Nor doesthedepartmentclaimentitlementtothismitigation plan to determine whether the prior wetlands alterations will, or did, affect the same water system as the withdrawals. Indeed, unlike with respect to the first question in the declaratory ruling, the department has never challenged the plaintiff’s characterization of the wetlands at issue as ‘‘hydraulically unrelated’’ to the diversions for which the plaintiff sought in the North Branfordpermit.Thedeclaratoryrulingitselfmakesno attempttolinkthewetlandstotherequestedwithdrawals, but rather, to the excavation activities. Thus, it is clearthatthereisnoauthoritytousethepermitprocess for the proposed diversions to regulate the wetlands. Wethereforeconcludethat,inthecontextofthepermit reviewprocessfortheplaintiff’sproposedwithdrawals, thedepartmenthasexceededitsauthorityinrequesting a wetlands mitigation plan such as the one requested by the department in its October 21, 2008 letter and we therefore answer the reframed question in the negative.40 VI DELAY IN PROCESSING NPDES PERMIT APPLICATION Finally, the plaintiff claims that, with respect to its North Branford facility, the trial court improperly affirmedthecommissioner’sconclusionthatthedepartmenthadtheauthoritytodelayprocessingtheplaintiff’s NPDES permit application required under the clean water act until it provided the department with the information requested in connection with its diversion permit application required under the water diversion act.We agreewiththe plaintiffthatthe regulationupon which the department relies for this authority does not allow it to delay processing the plaintiff’s NPDES permit application. Asdiscussedpreviouslyinthisopinion,theplaintiff’s North Branford facility requires the removal of a sub
stantialamountofstormwaterfromaquarry.Theplaintiff applied for a diversion permit for the withdrawal of 2,000,000 gallons of water per day of stormwater from the quarry and seeks an NPDES permit that will allow it to discharge the 2,000,000 gallons of water per day into an unnamed tributary to Cedar Pond. The department administers both discharge and diversion permits, the former pursuant to chapter 446i of the General Statutes, which governs water resources, and the latter pursuant to chapter 446k, which governs waterpollutioncontrol.41 Theplaintiff’scurrent,though lapsed, NPDES permit authorizes a monthly average discharge of 400,000 gallons of water per day into that pond, with a daily maximum discharge of 2,000,000 gallons per day; the plaintiff therefore seeks to renew and modify its existing NPDES permit to match the amount it wishes to divert. At some point during the permit review processes for both the NPDES permit application and the water diversion permit application, the department ‘‘became concerned about a possible downstream flooding hazard and the possibilityof adverse water quality impacts to the receiving surface waters resulting from erosion and sedimentation . . . [and] communicated these concerns to representatives for [the plaintiff] . . . .’’ The department concluded that, because ‘‘the activity addressedinthediversionpermitapplicationisdirectly associated with activity addressed in the request to modifytheNPDESdischargepermit’’pursuantto§ 22a430-4(d)(3)oftheRegulationsoftheConnecticutState Agencies,thedepartmentwouldnotact‘‘ontheportion of [the plaintiff’s NPDES permit] application in which it requests an increase in its discharge flow until [the plaintiff] has addressed the outstanding issues associated with the diversion permit application.’’ The third question of the plaintiff’s petition for a declaratory ruling asked whether ‘‘the [department may] decline to process or delay processing an NPDES permit renewal on the ground that the applicant has not supplied to the [department] requested additional informationregardingapendingwaterdiversionpermit application.’’ The commissioner ruled that the department could properly delay processing the plaintiff’s NPDES permit application because § 22a-430-4 (d) (3) of the Regulations of Connecticut State Agencies authorized the department to delay processing a completed NPDES permit application when a ‘‘related’’ permit application is incomplete or may be denied. The trial court affirmed the commissioner’s ruling and agreed that the two permit applications were related because, ‘‘[a]lthough the NPDES permit would authorize the discharge of quarry water to wetlands and watercourses downstream, the diversion of this water must be authorized by a diversion permit.’’ (Emphasis in original.)
Our resolution of this issue requires us to interpret § 22a-430-4 (d) (3) of the Regulations of Connecticut State Agencies, the sole regulation upon which the department relies for the authority to delay processing the plaintiff’s NPDES permit application. See Vitti v. Allstate Ins. Co., 245 Conn. 169, 178, 713 A.2d 1269 (1998) (‘‘[o]ur rules of statutory construction apply to administrative regulations’’ [internal quotation marks omitted]).42 We begin with the pertinent regulatory language. Section 22a-430-4 generally sets forth the procedures and criteria for issuing water discharge permits. Section 22a-430-4 (c) sets forth the requirements for those discharge permit applications. Section 22a-430-4 (c) (18) specifically requires NPDES permit applications to include a listing of all permits approvals received or applied for under various state and federal programs. Section 22a-430-4 (d) addresses preliminary review of the discharge permit applications. Section 22a-430-4 (d) (3) specifically provides: ‘‘The completeness of an application shall be judged independently of the status of any other permit application or permit for the same facility or activity. The department may delay processing a completed application if it is associated with another application which is incomplete or which may be denied.’’ Although the parties focus their discussion on whether the plaintiff’s NPDES permit application is ‘‘associated with’’ its water diversion permit application, in our view, the scope of the department’s authority under this regulation is principally dictated by the regulatory definition of ‘‘application,’’ which is expressly incorporated into § 22a-430-4 (d) (3) of the Regulations of Connecticut State Agencies. See Regs., Conn. State Agencies § 22a-430-3 (a) (1).43 Section 22a430-6 (b) (1) of the Regulations of Connecticut State Agencies defines an ‘‘[a]pplication’’ as ‘‘completed forms prescribed by the [c]ommissioner for applying for issuance, reissuance, modification or transfer of an individual permit under [General Statutes §] 22a-430 . . . or registering for a general permit under [General Statutes §] 22a-430b . . . including any additions, revisions, or modifications thereto.’’ General Statutes §§ 22a-430 and 22a-430b, which fall within the chapter of the General Statutes pertaining to water pollution control, govern permits for the discharge of water, substance, or materials into the waters of the state, including NDPES permits required under the clean water act. Therefore, the regulatory definition of ‘‘application’’ is limited to applications for discharge permits governed by General Statues §§ 22a-430 and 22a-430b and implicitly excludes applications for permits issued pursuant to other environmental programs, such as applications for permits issued pursuant to the water diversion act. Accordingly, unless other language in § 22a-430-4 (d) (3) of the Regulations of Connecticut State Agencies indicates that ‘‘application’’ must be construed differ
ently than as it is defined in § 22a-430-6 (b) (1) of the Regulations of Connecticut State Agencies, we must construe that term as meaning an application for a discharge permit. Absent a broader construction, the department clearly would lack authority to delay processing a completed discharge permit application due to the status of a nondischarge permit application such as the diversion permit application at issue in the present case. The parties agree that the references in the first sentence of § 22a-430-4 (d) (3) of the Regulations of Connecticut State Agencies to the ‘‘completeness of an application’’ and in thesecond sentence to delaying the processing of ‘‘a completed application’’ both refer to a discharge permit application—in the present case, the NPDES permit application. Our inquiry therefore centers on the mandate that the department judge the completeness of that discharge permit application ‘‘independentlyofthestatusof any other permit application or permit for the same facility or activity’’ and the authority vested in the department to delay processing a completed discharge application ‘‘if it is associated with another application which is incomplete or which may be denied.’’ (Emphasis added.) Regs., Conn. State Agencies § 22a-430-4 (d) (3). In our view, it is significant that the regulation distinguishes between ‘‘any other permit application or permit for the same facility or activity’’ and ‘‘another application.’’ As to the former,thephrase‘‘anyotherpermitapplication’’could be construed broadly to mean more than simply a discharge permit application because limiting it as such would render superfluous the word ‘‘permit,’’ as the definition of application already means a permit application. Instead, ‘‘any other permit application’’ reasonably could be construed to encompass any type of permit application, whether an application for a dischargepermitorotherpermitsuchasawaterdiversion permit,forthesamefacilityoractivity.Intheparticular contextofNPDESapplications,thisconstructionseems logicalgiventherequirementthattheapplicantlistvarious other permits for which it has applied or received approval. Thus, the first sentence would preclude the department from judging the completeness of the NPDES permit application based on the status of the plaintiff’s water diversion permit application for the North Branford facility.44 By contrast to the phrase ‘‘any other permit application’’ in the first sentence of § 22a-430-4 (d) (3) of the Regulations of Connecticut State Agencies, the second sentenceempowersthedepartmenttodelayprocessing a completed discharge application if it is associated with ‘‘another application’’ that is incomplete or that may be denied. We presume that the use of different modifiers of ‘‘application’’ was intended to import a different meaning. See C. R. Klewin Northeast, LLC v. State, 299 Conn. 167, 177, 9 A.3d 326 (2010) (‘‘[t]he use
of the different terms . . . within the same statute suggests that the legislature acted with complete awareness of their different meanings . . . and that it intendedthetermstohavedifferentmeanings’’[internal quotation marks omitted]); Moon v. Zoning Board of Appeals,291Conn.16,22,966A.2d722(2009)(applying same rule of construction to regulations). A common dictionary definition of ‘‘another’’ is ‘‘an additional one of the same kind; one more’’; Webster’s Third New InternationalDictionary(2002);whichdoesnotindicate a different type or category of application, but rather more of the same type or category. See Vitti v. Allstate Ins. Co., supra, 245 Conn. 178 (‘‘[i]n the absence of otherstatutory[orregulatory]guidance,wemayappropriatelylooktothemeaningoftheword[s]ascommonly expressed in the law and in dictionaries’’). Thus, by modifying ‘‘application’’ with the word ‘‘another,’’ the department did not signal a clear intent to depart from the regulatory definition of ‘‘application,’’ which refers onlytodischargepermitapplications.Ifthedepartment had wished to depart from the regulatory definition of ‘‘application’’ in the second sentence of § 22a-430-4 (d) (3), it could have employed the same explicit language it had used in the first sentence. See Regs., Conn. State Agencies § 22a-430-4 (d) (3) (‘‘any other permit application or permit for the same facility or activity’’ [emphasis added]). Accordingly, the reference to ‘‘another application’’ in the second sentence of § 22a430-4 (d) (3) refers to an additional discharge permit application. As such, the department could delay processingtheplaintiff’sNPDESpermitapplicationifthere were another discharge permit application pending before it that was associated with the NPDES permit application. The department could not, however, delay thatpermitapprovalduetotheplaintiff’spendingwater diversion permit application. Ourinterpretationof§ 22a-430-4(d)(3)oftheRegulationsofConnecticutStateAgenciesmakeslogicalsense when viewing the regulatory scheme in its entirety. It seemsreasonablethat,forexample,multipledischarges intothesamewatersystembythesameapplicantcould be associated with each other. Construing the regulationasempoweringthedepartmenttodelayprocessing a completed discharge permit application that is ‘‘associated with’’ another discharge permit application prevents an applicant with multiple pending discharge permit applications from being able to compel the department to make piecemeal decisions on facets of the applicant’s overall discharge activity over which the department properly has the same or similar water pollution concerns. Allowing the department to delay processing a completed discharge permit application if it is associated with a different type of permit application,suchasawaterdiversionpermitapplication,however, would risk arbitrary enforcement and allow the departmenttoholdupaproperlycompleteandperhaps
meritorious discharge permit application merely because a different permit application, administered pursuanttoanentirelydifferentenvironmentalprogram and implicating an entirely different set of environmental concerns, is incomplete or may be denied. While we acknowledgethatthereisalogicalrelationshipbetween thediversionandthesubsequent dischargeofthesame waterandthatsucharelationshipcouldjustifyaregulatory scheme under which the department could consider permit applications for these actions concurrently, the regulatory scheme as it currently exists does not allow the department to do so. We also note that the department’s concerns about the plaintiff’s water diversion activities appear to be more properly addressed by use of the powers conferred to it by the water diversion act, not the regulations implementing the clean water act. Discharges authorized pursuant to § 22a-430 are exempted from therequirementsofthewaterdiversionact.SeeGeneral Statutes § 22a-377 (a) (3). To construe § 22a-430-4 (d) (3) of the Regulations of Connecticut State Agencies asthecommissionerhasinthepresentcasewouldyield a construction that is in tension with this exemption because it would allow the department to accomplish indirectly—regulation of the environmental effects of NPDES discharges pursuant to the water diversion act—what it could not accomplish directly. See footnote 24 of this opinion. Because the department does not claim authority to delay processing the plaintiff’s NPDES permit application under any source other than § 22a-430-4 (d) (3) of the Regulations of Connecticut State Agencies, and because‘‘anadministrativebodymustactstrictlywithin its statutory authority’’ and ‘‘cannot modify, abridge or otherwise change the statutory provisions . . . under whichitacquiresauthorityunlessthestatutesexpressly grantitthatpower’’;(internalquotationmarksomitted) Celentanov.Rocque,supra,282Conn.654;weconclude that § 22a-430-4 (d) (3) does not empower the department to delay processing the plaintiff’s NPDES permit application due to outstanding matters related to the plaintiff’s diversion permit application for the North Branford site.

Outcome: The judgment is reversed and the case is remanded withdirectiontosustaintheplaintiff’sappeal.Thecommissioner’s cross appeal is dismissed as moot.

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