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Significant Ruling Clarifies Scope of Environmental Regulation

Tilcon Connecticut, Inc.

Secured a victory in Tilcon Connecticut, Inc. v. Commissioner of Environmental Protection. Tilcon filed applications for water diversion permits in 2003, but DEEP’s processing evolved into a dispute over the agency’s authority under the Connecticut Water Diversion Policy Act (Act) to use the permit process to demand information about, and to regulate, Tilcon’s earth-excavation activities. In response to the Department of Environmental Protection’s (DEEP) demand for information about Tilcon’s earth excavation activities, Tilcon filed a petition for a declaratory ruling to address the scope of the DEEP’s authority. The DEEP Commissioner deemed all of the Department’s actions authorized under the Act. In its July 28, 2015 ruling, the Connecticut Supreme Court reversed the DEEP Commissioner and the trial court decision, accepting arguments made by the Shipman & Goodwin team, that: (1) the Water Diversion Policy Act cannot be used to regulate earth materials excavation activities; (2) the Act does not authorize DEEP to reopen a duly issued wetlands permit; and (3) the DEEP cannot delay the processing of other permits as a way to leverage its demands under the Act. This ruling has the potential to benefit all businesses subject to Connecticut environmental regulations. To read more about Tilcon Connecticut, Inc. v. Commissioner of Environmental Protection, click here.

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