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Firm Secures Key Environmental Ruling in CT Supreme Court

August 14, 2015

In a major victory that could benefit all businesses subject to Connecticut environmental regulations, a team of Shipman & Goodwin attorneys successfully challenged the Department of Energy & Environmental Protection’s (DEEP) interpretation of the scope of its jurisdiction under the Connecticut Water Diversion Policy Act.

Partner Timothy S. Hollister, Co-Chair of the firm’s Real Estate, Environmental and Land Use practice,  and colleagues Beth Bryan Critton and Aaron D. Levy represented Tilcon Connecticut, Inc., in its bid to prevent regulation of its earth-excavating activities from being taken over by the DEEP; these activities are currently handled by area municipal zoning and wetlands commissions.

What started with Tilcon’s routine filing of applications for water diversion permits more than 10 years ago evolved into a dispute over the DEEP’s authority to use the permit process to assess possible effects of its earth-excavation activities on the environment.

In its ruling reversing the DEEP Commissioner and the trial court, the Connecticut Supreme Court accepted all three of the arguments presented by the attorneys on Tilcon’s behalf:  the Water Diversion Policy Act cannot be used to regulate earth materials activities; the Act does not authorize DEEP to reopen a duly issued wetlands permit: and the DEEP cannot delay the processing of other permits as a way to leverage its demands made under the Act.  (The firm was recently named among the Top 10 Law Firms in the Northeast by the American Bar Association’s Section of Environment, Energy and Resources, based on its number of members.)

 “This ruling should have beneficial implications for every business that is regulated by the DEEP,” said Attorney Hollister. “The Court, in its opinion, has essentially struck down a common DEEP position that any applicant for any permit subjects itself to DEEP’s review of all potential environmental impacts, as opposed to the impacts of the permit for which they applied.”

Because of the issue’s relevance to businesses, Tilcon received widespread support, including amicus briefs submitted to the Supreme Court by the Connecticut Business & Industry Association, the Home Builders and Remodelers Association and the CT Water Works Association.

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