<7sg a->N Sid )q \

STATE OF NEW YORK

COURT OF APPEALS

In the Matter of the Application of

NIAGARA MOHAWK POWER CORPORATION,

Petitioner-Respondent,

For a Judgment pursuant to

Article 78 of the Civil Practice
Law and Rules

- against -

NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION,
COMMISSIONER THOMAS C. JORLING,
and DEPUTY COMMISSIONER AND
GENERAL COUNSEL MARC 8. GERSTMAN,

Appellants-Respondents .

APPELLANTS' REPLY BRIEF

ROBERT ABRAMS
Attorney General of the State
of New York
Attorney for Appellants
New York State Department
of Law
The Capitol
Albany, New York 12224
(518) 474-4819

Jerry Boone
Solicitor General

Peter H. Schiff
Deputy Solicitor General

Kathleen Liston Morrison

Assistant Attorney General

Of Counsel Dated i September 3, 1993

 TABLE OF CONTENTS

Page

Preliminary Statement „ . !

ARGUMENT x

Conclusion 9

Appendix A (August 3, 1993 Decision of Conn. Supreme

Court in Summit Hvdropower v. Commissioner of
Environmental Protection) Al
 Table of Authorities

i.

Page

CASES

Arnold Irrigation District v. Department of

Environmental Quality. 717 P2d 1274 (Or. App.
1986), review denied, 726 P2d 377 (1986) 3, 4, 5

California Vf FERC, 495 U.S. 490 (1990) 8

commonwealth of Pennsylvania Department of

Environmental Resources y, cjtY pf
Harrisbura. 578 A2d 563 (Pa. Cmmwlth. 1990) .... 2

First Iowa Hydroelectric Cooperative v.

Federal Power Commission. 328 U.S. 152 (1946). . . 8

Keating v. Federal Regulatory Energy Commission.

927 F2d 616 (D.C. Cir. 1991) 8

National Fuel Gas SuppIv Corp. v. PSC. 849 F2d

571 (2d Cir. 1990), cert dgpjefl, 501 U.S. ,
110 S. Ct. 3240 (1991) 8

Savles Hvdro Associates v. Maughan. 985 F2d 451

(9th Cir. 1993) 8

State of Washington v. PUD No. 1. 849 P2d 646

(Wash. 1993), pet. for cert, pending,
NO. 92-1911 2, 3, 5

Summit Hvdropower v. Commissioner of Environmental

Protection. No. CV-91-050-26-43 (Superior Ct.
Conn. 1992) 2

Udall v. Federal Power Commission,

387 U.S. 428 (1967) 8

VtS, yt Marathon Development corporation,

867 F2d 96 (1st Cir. 1989) 8

ViS, pept, or Interior vt ferc, 952 F2d 538

(D.C. Cir. 1992) 8
 Table of Authorities (Continued) ii.

Page

FEDERAL STATUTES AND REGULATIONS

Clean Water Act

Section 202 6

Section 301 [42 U.S.C. S 1311] 3, 4, 6

Section 302 [42 U.S.C. § 1312] 4, 6

Section 303 [42 U.S.C. S 1313] 3, 4, 5

Section 306 [42 U.S.C. § 1316] 4, 6

Section 307 [42 U.S.C. § 1317] 4, 6

Section 309 3, 4

Section 401 [42 U.S.C. § 1341] passim

Section 401(a) 4

Section 401(a) (1) 4,7

Section 401(a) (3) 4

Section 401(a) (4) 4,7

Section 401(a) (5) 4

Section 401(d) [42 U.S.C. S 1341(d)] . . . passim

Section 402 3, 4

Section 509. . , 3, 4
 Table of Authorities (Continued) iii.

Page

Electric Consumers Protection Act of 1986

(MECPA») Pub. Law 99-495, 100 Stat 1243 ... 8

STATE STATUTES

McKinney's Statutes §239 5

OTHER AUTHORITIES

House Conference Report

H.R. Conf. Rep. No. 95-830, 95th Cong.,

1st Sess. 96 (1977), reprinted in 1977
US Code, Cong. & Admin. News 4424 4

Senate Conference Report

Legislative History of the Water Pollution

Control Act Amendments of 1972, at p. 1204;
2 U.S. Code, Cong. & Admin. News, 92d Cong.
2d Sess., pp. 3668, 3815 6

STATE WATER QUALITY CERTIFICATION AND WETLAND

PROTECTION? A CALL TO AWAKEN THE SLEEPING GIANT.
Ransel and Meyers, 7 Va. J. of Nat. Resources
339 (1988) 3
STATE OF NEW YORK

COURT OF APPEALS

In the Matte? of the Application of

NIAGARA MOHAWK POWER CORPORATION,

Petitioner-Respondent ,

For a Judgment pursuant to

Article 78 of the civil Practice
Law and Rules

- against -

NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION,
COMMISSIONER THOMAS C. JORLING,
and DEPUTY COMMISSIONER AND
GENERAL COUNSEL MARC 8. GERSTMAN,

Appellants-Respondents .

APPELLANTS' REPLY BRIEF

greUwitmry statement

Appellants submit this brief in reply to the answering brief

submitted by Niagara Mohawk. This brief contains our response to

certain specific arguments made by Niagara Mohawk which are not

addressed in our main brief. We continue to rely on our main

brief for the points contained there.

ARGUMENT

1. Niagara Mohawk mischaracterizes the Department's

position when it describes (br., pp. 14, 19, 25) the Department's

view of Section 401 of the Clean Water Act as including broad

environmental authority. As is clear from our main brief, the

Department views its authority under Section 401 as being broader

than mere water quality standards alone but it is nonetheless

limited to protection of water quality.

2. Summit Hvdropower v. Commissioner of Environmental

Protection. No. CV-91-050-26-43 (Superior Ct. Conn. 1992), relied

on by Niagara Mohawk as a case which narrowly interpreted the

scope of a State's authority under Section 401 (br. , pp. 36, n

17, 40, n. 20), was unanimously reversed on procedural grounds by

the Connecticut Supreme Court on August 3, 1993 and the case was

dismissed. A copy of the decision is attached to this brief as

an appendix.

Pennsylvania's mid-level appeals court and the lower courts

in this State are now the only courts which have narrowly

interpreted Section 401. The Pennsylvania ruling in Commonwealth

of Pennsylvania Department of Environmental Resources v. City of

Harrisburq. 578 A2d 563 (Pa. Cmmwlth. 1990), is fraught with

basic errors. As indicated in our main brief (pp. 28-36) , all

other State courts construing a State's authority under Section

401 have adopted broad interpretations protective of the State's

water quality. The most recent and scholarly of these other

State court decisions is, as discussed at length in our main

brief (pp. 28-32), State of Washington y, PVP Np, 1, 849 P2d 646

(Wash. 1993), pet, for certt pending, No* 92-1911- In that case,

Washington's highest court, after lengthy discussion, adopted an

interpretation of Section 401 which accords with that urged by

the Department here.

The Washington court's interpretation of the statutory

language, legislative history, and intent of Section 401 squarely

conflicts with that urged by Niagara Mohawk. The Washington

Supreme Court, for example, specifically held that Congress1

decision not to include a reference to Section 303 (water quality

standards) in Section 401(d), which deals with a State's power to

impose conditions on a certification, indicated that Congress did

not mean to restrict conditions on certifications only to those

necessary to assure compliance with Section 303 water quality

standards. 849 P2d at 652-653. This view is consistent with the

earlier Oregon Court of Appeals1 holding in Arnold Irrigation

District v. Department of Environmental Quality. 717 P2d 1274,

1279 (Or. App. 1986), review denied. 726 P2d 377 (1986), and the

view urged by Ransel and Meyers in State Water Quality

Certification and Wetland Protection: A Call to Awaken the

Sleeping Giant. 7 Va. J. of Nat. Resources 339, 355 (1988). The

Oregon case and the law review article are discussed in our main

brief at pp. 30-34.

3. Niagara Mohawk's partial quotation (p. 32) of the 1977

House Conference Report as a statement in support of Niagara

Mohawk's view that Section 401(d) need not mention Section 303

because it is "always included by reference where section 301 is

listed" omitted essential language. The omitted language

provides context for the statement and demonstrates that the

quoted statement referred to other sections of the statute,

specifically Sections 301, 309, 402, and 509, not Section 401.

The full quotation is as follows:

 The inserting of section 303 into the series
of sections listed in section 401 is intended
to mean that a federally licensed or
permitted activity, including discharge
permits under section 402, must be certified
to comply with State water quality standards
adopted under section 303. The inclusion of
section 303 is intended to clarify the
requirements of section 401. It is
understood that section 303 is required by
the provisions of section 301. Thus, the
inclusion of section 303 in section 401 while
at the same time not including section 303 in
the other listed sections of the Act where
sections 301, 302, 306, and 307 are listed is
in no way intended to imply that 303 is not
included by reference to 301 in those other
places in the Act, such as sections 301. 309.
402. and 509 and any other point where they
are listed. Section 303 is always included
by reference where section 301 is listed.

H.R. Conf. Rep. No 95-830, 95th Cong., 1st Sess. 96 (1977),

reprinted in 1977 U. S. Code Cong* Admin. News 4424, 4471

(Material underscored omitted by Niagara Mohawk.)

Congress added all of the Section 303 references in Section

401 at the same time in 1977. Congress at that time added

references to Section 303 in subsections (a)(1), (a)(3), (a)(4),

and (a)(5) of 401 but conspicuously omitted it from 401(d),

which, as discussed in our main brief, contains the broadest

language of all. (References in 42 U.S.C. § 1341 to section 1313

are references to Section 303 of the Clean Water Act.) Congress'

refusal to add the Section 303 reference to Section 401(d) at the

same time Congress was adding the reference to Section 401(a),

which precedes 401(d), is significant, not a mere "oversight", as

Niagara Mohawk optimistically characterizes it (p. 32) . As

pointed out by the Oregon Court of Appeals in Arnold Irrigation.

 5.

717 P2d at 1277, Congress could easily have added the Section 303

reference to Section 401(d) at the same time it was adding it to

the other sections of 401, and the fact that it did not do so is

indicative of its intention that the section be treated

differently. Accord . State of Washington v. PUD No. 1. 849 P2d

646, 652-653 (Wash. 1993), pet, for cert, pending. No. 92-1911.

4. Niagara Mohawk's argument (pp. 26- 27) that the phrase

"any other appropriate requirement of State law" is to be

construed under the eiusdem generis rule of construction and can

therefore refer only to water quality standards promulgated under

Section 303 is belied by the facts, which demonstrate that

Congress could have easily chosen to reference Section 303

specifically but decided not to, and that Congress also

specifically rejected suggestions to use narrow language.

Eiusdem generis is "useful only to assist in ascertaining the

legislative intent when the language used is not clear; if the

intent of the lawmakers is plain, the rule of eiusdem generis

must yield". McKinney's Statutes, § 239, p. 409 (McKinney's

1971) . Here, the language used by Congress is clear and the

legislative intent is also clear.

Congress deliberately used a broader phrase in Section

401(d). When the House Committee on Public Works was conducting

hearings on the Senate's version in 1971, Environmental

Protection Agency Administrator Ruckelshaus specifically asked

the Committee to define the term "applicable water quality

requirement" (the language then in the version previously passed

by the Senate) in order to limit the term to: "any applicable

effluent limitations under Section 301 or 302 of this Act, or

prohibition, effluent standard, or pretreatment standard under

Section 307 of this Act, or any more stringent water quality

requirement under State law as provided in Section 510 of this

Act". The Ruckelshaus definition was not adopted by the

Committee. Instead, Congress enacted the broader language found

in Section 401(d): "any other appropriate requirement of State

law" — on its face, not even limited to water quality.

Legislative History of the Water Pollution Control Act Amendments

of 1972. at p. 1204; 2 U.S. Code Cong. & Admin. News, 92nd Cong.,

2d Sess., pp. 3668, 3815. The Senate Conference Report states,

"Subsection (d) , which requires a certification to set forth

effluent limitations, other limitations, and monitoring

requirements necessary to insure compliance with sections 301,

202, 306, and 307, of this Act, has been expanded to also require

compliance with any other appropriate requirement of State law

which is set forth in the certification. 2 U.S. Code Cong. &

Admin. News, 92nd Cong., 2d Sess., p. 3815 (Senate Conference

Report) (emphasis added) . The Senate bill was enacted in lieu of

the House bill. 2 U.S. Code Cong. & Admin. News, 92nd Cong., 2d

Sess., p. 3668.

Niagara Mohawk simply fails to acknowledge the very real

difference between the language used in Section 401(d) and the

language used in other sections. Read together as a whole,

Section 401 of the Clean Water Act authorizes States to protect

 7.

the quality of their waters and does not limit them to

considering EPA-approved water quality standards. This is a

reasonable reading of the language actually used by Congress in

enacting Section 401, including Section 401(d), an integral part

of the statute.

5. Niagara Mohawk's argument (pp. 32-33) that Section

401(a)(4) demonstrates that the term "applicable water quality

requirements" is a shorthand reference to the limitations and

standards promulgated under the five sections of the Clean Water

Act enumerated in Section 401(a) (1) because there Congress

enumerated the five sections ignores the fact that Congress could

easily have enumerated the five sections wherever it wished that

interpretation to prevail. Congress would not have found it

difficult to substitute "applicable provisions of section 1311,

1312, 1313, 1316, or 1317" for "applicable water quality

requirements" in Section 401. But it did not do so.

6. That part of Niagara Mohawk's answering brief which

relates to the preemptive effect of the Federal Power Act is

irrelevant because, as stated in our main brief, Congress

subsequently carved out an exception by giving water quality-

protective jurisdiction back to the States through enactment of

Section 401 of the Clean Water Act. The only issue here involves

the scope of that water quality jurisdiction. Consequently,

those portions of Niagara Mohawk's brief which deal with the

scope of the Federal Power Act preemption, and the holdings in

First Iowa Hydroelectric Cooperative v. Federal Power Commission.

 8.

328 U.S. 152 (1946), California v. FERC. 495 U.S. 490 (1990),

Sayles Hydro Associates v. Mauqhan. 985 F2d 451 (9th Cir. 1993) ,

Udall v. Federal Power Commission. 387 U.S. 428 (1967), and

National Fuel Gas SuppIv Corp. v. PSC. 894 F2d 571 (2d Cir. ,

1990), cert denied. 501 US , 110 S. Ct. 3240 (1991), are simply

irrelevant. None of the cases cited by Niagara Mohawk involved

the scope of the authority given back to the States by

Congression when it enacted Section 401 of the Clean Water Act.

7. Niagara Mohawk's discussion (pp. 19-20) of the Electric

Consumers Protection Act of 1986 ("ECPA") , Pub. Law 99-495, 100

Stat. 1243, blurs the distinction between the recommendations

made by State fish and wildlife agencies as part of the comment

process to the Federal Energy Regulatory Commission ("FERC") for

conditions to be imposed by FERC on its licenses and the

conditions imposed by the State itself on a certification it

issues. It is the State, not FERC, which decides what conditions

are appropriate for imposition in a water quality certification.

33 U.S.C. § 1341(d). Such conditions are binding on the licensee

and cannot be reviewed or overturned by the federal licensing

agency. U.S. Dept. of Interior v. FERC. 952 F2d 538, 548

(D. C. Cir. 1992) ; Keating v. Federal Regulatory Energy Commission.

927 F2d 616, 622-623 (D.C.Cir. 1991); U.S. v. Marathon

Development Corporation. 867 F2d 96, 99-100 (1st Cir. 1989).

This is not to say, however, that FERC may not impose even more

restrictive water quality conditions in its license. FERC must

take into account what the State has done. U.S. Dept. of
restrictive water quality conditions in its license. FERC must

take into account what the State has done. U.S. Dept. of

Interior v. FERC. 952 F2d 538, 548 (D. C. Cir . 1992) .

Conclusion

The order issued by the court below should be reversed and

the petition dismissed.

ROBERT ABRAMS
Attorney General of the State
of New York
Attorney for Appellants
New York State Department
of Law
The Capitol
Albany, New York 12224
(518) 474-4819

Jerry Boone
Solicitor General

Peter H. Schiff
Deputy Solicitor General

Kathleen Liston Morrison

Assistant Attorney General

Of Counsel Dated: September 3, 1993

 Al

APPENDIX A
Page 58 CONNECTICUT LAW JOURNAL August 3, 1993

792 AUGUST, 1993 226 Conn. 792

Summit Hydropower Partnership v. Commr. of Environmental Protection

Summit Hydropower Partnership v. Commissioner

of Environmental Protection et al.
(14618)
(14619)

Peters, C. J., Callahan, Norcott, Katz and Palmer, Js.

The plaintiff S Co., which proposed to construct a hydroelectric facility in
the town of Putnam, sought certification from the defendant commis
sioner of environmental protection that the proposed project was in
compliance with federal and state water quality standards. The com
missioner denied the request for certification and offered to hold a hear
ing on that denial The hearing was held before an adjudicator appointed
by the commissioner, and the defendant town of Putnam intervened
and participated. The adjudicator recommended that the commissioner
uphold his previous denial, and, after the commissioner heard arguments
and reviewed briefs, the record of the hearing and a copy of the fed
eral application, the commissioner affirmed bis previous denial of cer
tification. Thereafter, S Co. appealed to the trial court citing the right
to appeal from an administrative agency's decision in a contested case
pursuant to the Uniform Administrative Procedure Act (UAPA)
(S 4-183 [a]). That court sustained the plaintiffs appeal and ordered the
commissioner to issue the requested certification. On separate appeals
by the commissioner and the town, hdd that there being no express
statutory requirement that the commissioner hold a hearing on the plain
tiffs application, the trial court improperly concluded that the proceed
ing constituted a contested case over which that court had subject matter
jurisdiction; the statute ($ 4-166 [2]) that defines a "contested case"
manifests a legislative intention to limit that status to a proceeding in
which an agency is required by statute to provide an opportunity for
a hearing to determine a party's legal rights or privileges and the com
missioner's gratuitous decision to hold a hearing on S Co.'s applica
tion could not confer that status in the absence of any legislative
requirement.
Argued May 4—decision released August 3, 1993

Appeal from a decision by the named defendant deny

ing the plaintiffs request for water quality certifica
tion required by federal law for the construction and
operation of a proposed hydroelectric project, brought
to the Superior Court in the judicial district of Hartford-
New Britain at Hartford, where the court, Fuller, J.,
denied the motions to dismiss filed by the named
 A3

August 3, 1993 CONNECTICUT LAW JOURNAL Page 59

226 Conn. 792 AUGUST, 1993 793

Summit Hydropower Partnership v. Commr. of Environmental Protection
defendant and the defendant town of Putnam; there
after, the matter was tried to the court; judgment sus
taining the appeal and ordering the named defendant
to issue certification, from which the named defend
ant and the defendant town of Putnam filed separate
appeals. Reversed; judgment directed.

David H. Wrinn, assistant attorney general, with

whom, on the brief, were Richard Blumenthal, attor
ney general, and JosephRubin, assistant attorney gen
eral, for the appellant in Docket No. 14618 (named
defendant).
Gregory A. Sharp, with whom was Marcus G. Organ-
schi, for the appellant in Docket No. 14619 (defendant
town of Putnam).
Roger E. Koontz, for the appellee in both cases
(plaintiff).

Callahan, J. The principal issue in this appeal is

whether the proceedings before an administrative
agency, wherein the agency denied the plaintiffs
request for state water quality certification for a pro
posed hydroelectric facility, constituted a "contested
case" under General Statutes $ 4-166 (2). The plaintiff,
Summit Hydropower Partnership, filed an administra
tive appeal in the Superior Court from a decision of
the named defendant,1 the commissioner of environ
mental protection (commissioner), denying its request
for water quality certification. The commissioner based
his denial on his determination that the proposed facil
ity did not comply with certain state water standards.
The Superior Court, Fuller, J., sustained the plaintiffs
administrative appeal. The commissioner and the town
of Putnam appealed from the trial court's judgment to
1 The defendants are the commissioner ofenvironmental protection, the
water management bureau of the department ofenvironmental protection,
the town of Putnam, and the Polymer Corporation,
 A4

Page 60 CONNECTICUT LAW JOURNAL August 3, 1993

794 AUGUST, 1993 226 Conn. 792

Summit Hydropower Partnership v. Commr. of Environmental Protection
the Appellate Court, and we transferred the appeal to
this court pursuant to Practice Book $ 4023 and Gen
eral Statutes $ 51-199 (c). We reverse the judgment of
the trial court.

The following facts are relevant. The plaintiff pro

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

Since 1730, Cargill Falls has been used for the

production of hydropower. The project proposed by the
plaintiff would involve the construction of a powerhouse
and tailrace next to the existing town dam. The project,
when constructed, would be expected to generate
approximately 5,400,000 kilowatt-hours per year of
electricity. A tailrace is a device that, in this particu
lar case, would continuously reroute the river's flow
into the powerhouse and return the water one hundred
feet downstream from the point at which the flow had
been initially diverted.2 Because the water coming in
upstream from the dam would be diverted through the
turbines and discharged farther downstream, the
defendants feared that the proposed facility would dry
up the falls, leaving in its place, "a band of rocks."8
1 The proposed project would operate in a "run-of-the-river mode" which
means that the river flow rate both upstream and downstream from the
dam would not be affected because the water entering the turbines would
be continuously released back into the river.
* Initially, the plaintiff proposed a minimum stream flow over the spill
way of IB cubic feet per second (cfs), which is significantly less than the
August 3, 1993 CONNECTICUT LAW JOURNAL Page 61

226 Conn. 792 AUGUST, 1993 795

Summit Hydropower Partnership v. Commr. ofEnvironmental Protection
In September, 1988, the plaintiff filed an application
with the Federal Energy Regulatory Commission for
a license to construct the proposed project. Pursuant
to $ 401 (a) (1) of the Federal Water Pollution Control
Act Amendments of 1972, 33 U.S.C. $ 1341(a)(1)
(1988), commonly known as the Clean Water Act
(CWA), the plaintiff also filed a copy of the application
with the water management bureau of the Connecti
cut department of environmental protection and
requested certification* that the proposed project was
current average annual stream flow of 447 cfs. In response to concerns
from the department of environmental protection (department) staff that
such minimum flows would not protect aquatic life, the plaintiffproposed
a constant minimum stream flow of 58 cfs. Stream flow over the spillway
currently exceeds 58 cfs 95 percent ofthe time. The department staff was
concerned that the proposed flat 58 cfs release over the spillway would
destroy the aesthetic quality of the fall. Consequently, the plaintiff and the
department reached an agreement that the proposed minimum stream flows
would range between 80 cfs to 145 cfs. The town, however, was not part
ofthe stipulated agreement because it believed that the variable flow would
sacrifice the vigor and natural beauty of the falls area.
4 Section 401 of the CWA provides in relevant part: "(1) Any applicant
for a Federal license or permit to conduct any activity including, but not
limited to, the construction or operation of facilities, which .may result in
any discharge into the navigable waters, ahaD provide the licensing or per
mitting agency a certification from the state in which the discharge
originates or will originate, or, if appropriate, from the interstate water
pollution control agency having jurisdiction over the navigable waters at
the point where the discharge originates or will originate, that any such
discharge will comply with the applicable provisions ofsections 1311, 1812,
1818, 1816, and 1817 of this title. . . . Such State or interstate agency
shall establish procedures for public notice in the case of all applications
for certification by it and, to the extent that it deems appropriate, proce
dures for public hearings in connection with specific applications. In any
case where a State or interstate agency has -no authority to give such a
certification, such certification shall be from the Administrator. Ifthe State,
interstate agency, or Administrator, as the case may be, fails or refuses
to act on a request for certification, within a reasonable period oftime (which
shall not exceed one year) after receipt of such request, the certification
requirements of this subsection shall be waived with respect to such Fed
eral application. No license or permit shall be granted until the certifica
tion required by this section has been obtained or has been waived as
 A6

Page 62 CONNECTICUT LAW JOURNAL August 3, 1993

796 AUGUST, 1993 226 Conn. 792

Summit Hydropower Partnership v. Commr. ofEnvironmental Protection
in compliance with federal and state water quality stan
dards.6 Section 401 certification is a condition prece
dent to the issuance of a license by the Federal Energy
Regulatory Commission to construct and operate a
hydroelectric facility.

By letter dated August 10, 1989, the commissioner

denied the plaintiffs request for $ 401 certification on
the ground that the proposed project did not comply
with the state's water quality standards.6 The commis
sioner noted that the project would adversely affect:
"1. the physical, chemical and biological integrity and
uninterrupted instantaneous flow of the river; 2. the
designated uses for the river, including the recreational
use and enjoyment, fish, other aquatic life and wildlife
and their habitat, and other legitimate uses of the river;
provided in the preceding sentence. No license or permit shall be granted
if certification has been denied by the State, interstate agency, or the Admin
istrator, as the case may be." 83 U.S.C. $ 1841 (a) (1988).
The legislative history of $ 401 of the CWA, P.L. 92-500, states: "(The]
provision [$ 401] makes clear that any water quality requirements estab
lished under State law, more stringent than those requirements established
under this Act, also shall through certification become conditions on any
Federal license or permit. The purpose of the certification mechanism pro
vided in this law is to assure that Federal licensing or permitting agencies
cannot override State water quality requirements." S. Rep. No. 92-414,
92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Admin. News
8735.
' Section 803 of the CWA requires that states adopt water quality stan
dards that shall "consist of the designated uses of the navigable waters
involved and the water quality criteria for such waters based on such uses."
S3 U.S.C. $ 1313 (c) (2) (A) (1988). The standards shall take into consider
ation the "use and value of public water supplies, propagation of fish and
wildlife, recreational purposes . . . industrial, and other purposes . . . ."
83 U.S.C. $ 1318 (c) (2) (A) (1988).
* Pursuant to General Statutes $ 22a-42€, the water quality standards
were adopted by the department ofenvironmental protection and pursuant
to $ 803 of the CWA were approved by the United States Environmental
Protection Agency. Federal regulations require that state water quality
standards consist of classifications designating uses for the various waters
of the state, water quality criteria sufficient to protect those uses, and an
antidegradation policy. See 40 C.F.R. J 181.6.
 A7

August 3, 1993 CONNECTICUT LAW JOURNAL Page 63

226 Conn. 792 AUGUST, 1993 797

Summit Hydropowcr Partnership v. Commr. of Environmental Protection
and 3. the aesthetic quality of the river." The commis
sioner offered to hold a public hearing on the denial
of the plaintiffs request. The plaintiff appealed the
commissioner's denial and requested a hearing. The
town of Putnam intervened pursuant to General Stat
utes § 22a-19 and participated in the hearing, which
was held in December, 1989, and January, 1990.7
At the hearing, an adjudicator appointed by the com
missioner heard evidence and testimony and reviewed
exhibits. The adjudicator noted that the Cargill Falls
area of the Quinebaug River was classified as class C
surface water under the state's water quality standards
with a goal of achieving class B status. The adjudica
tor used the class B water quality criteria to evaluate
the project.8 He concluded that the proposed project
would substantially reduce the flow over Cargill Falls
to "an aesthetically undesirable level" and would impair
existing designated recreational uses at the site, includ
ing the recreational viewing of the falls. The adjudica
tor concluded that the proposed project did not comply
with the state's water quality standards* and recom
mended that the commissioner uphold his previous
denial of the plaintiffs request for $ 401 certification.
The plaintiff requested oral argument directly before
the commissioner. The commissioner granted the
request and received briefs from all parties and heard
oral argument in April, 1991. In September, 1991, after
reviewing the record of the hearing, the briefs, and a
copy of the Federal Energy Regulatory Commission
' On November 21, 1990, after the record had been dosed, Polymer Cor
poration, an owner of a portion of the water rights at the Cargill Falls Dam,
intervened in the administrative proceedings.
11 The designated uses for class B waters include: recreational use, fish
and wild life habitat, agricultural and industrial supply and other legitimate
uses including navigation.
' The adjudicator also concluded that recreational use, as that term is
used in the state's water quality standards, includes the aesthetic quality
and out-of-strcam recreational uses such as viewing a given water source.
 A8

rYiMNKCTICUT LAW JOURNAL _August 3, 1993

Page 64

798 AUGUST, 1993 226 Conn. 792

Summit Hydropower Partnership v. Commr. of Environmental Protection
application for the proposed facility, the commissioner
affirmed his initial denial of the plaintiffs request and
issued his final decision denying the plaintiffs request
for $ 401 certification. In doing so, the commissioner
adopted the adjudicator's conclusion that because the
project would drastically reduce the river's flow and
impact its recreational uses, it would violate the state's
water quality standards.
In October, 1991, the plaintiff appealed the commis
sioner's decision to the Superior Court purportedly pur
suant to General Statutes (Rev. to 1987) $ 4-183 (a) of
the Uniform Administrative Procedure Act (UAPA).10
In its appeal, the plaintiff asked that the court reverse
the commissioner's final decision denying its request
for $ 401 certification. On July 20, 1992, the trial court
issued its memorandum of decision concluding that the
commissioner had improperly denied the plaintiffs
request for $ 401 certification and directed him to issue
a certificate. This appeal followed.
The defendants argue on appeal that the trial court
improperly: (1) denied the commissioner's motion to dis
miss the plaintiffs a<lministrative appeal because the
plaintiff had not adequately exhausted its administra
tive remedies; (2) concluded that the plaintiffs admin
istrative appeal from the proceedings on, its request for
$ 401 certification constituted a contested case under
General Statutes (Rev. to 1987) S 4-166 (2) from which
the plaintiff had a right to appeal;11 (3) concluded that
10 General Statutes (Rev. to 1987) $ 4-188 (a) provided in relevant part:
"A person who has exhausted all administrative remedies . . . and who
is aggrieved by a final decision in a contested case is entitled to judicial
review by way of appeal under this chapter . . . ." See footnote 12.
u General Statutes (Rev. to 1987) $ 4-166 (2) provided: " 'Contested case'
means a proceeding, including but notrestricted to rate-making, price fix
ing and licensing, in which the legal rights, duties or privileges of a party
are required by statute to be determined by an agency after an opportu
nity for hearing or in which a hearing is in fact held, but does not include
hearings referred to in section 4-168."
August 3, 1993 CONNECTICUT LAW JOURNAL Page 65

226 Conn. 792 AUGUST, 1993 799

Summit Hydropower Partnership v. Commr. of Environmental Protection
the commissioner had exceeded his authority under
state statutes and regulations by denying the plaintiffs
request for $ 401 certification; (4) concluded that the
commissioner had exceeded his authority under federal
law by denying the plaintiffs request for $ 401 certifi
cation; (5) substituted its judgment for that of the com
missioner and determined that the commissioner had
applied legally vague and undefined aesthetic standards
to the plaintiffs request for $ 401 certification by deny
ing the request on aesthetics alone; (6) failed to defer
to the commissioner's interpretation of the state's
water quality standards and the Federal Water Pollu
tion Control Act; and (7) directed the commissioner to
issue the requested certification on remand. We con
clude that the trial court improperly determined that
the plaintiffs appeal had been taken from a contested
case and reverse the court's judgment.

The defendants contend that the trial court incor

rectly determined that the proceedings before the
environmental protection agency constituted a "con
tested case" under General Statutes (Rev. to 1987)
$ 4-166 (2). They argue, consequently, that the court
improperly concluded that it possessed subject matter
jurisdiction over the plaintiffs appeal. We agree.

Judicial review of an administrative decision is crea

ture of statute. Tarnopol v. Connecticut Siting Coun
cil, 212 Conn. 157, 163, 561 A.2d 931 (1989); Park City
Hospital v. Commission on Hospitals & Health Care,
210 Conn. 697, 702, 556 A.2d 602 (1989). Section
4-183 (a) of the UAPA, at the time this action was filed,
provided that "[a] person who has exhausted all admin
istrative remedies available within the agency and who
is aggrieved by a final decision in a contested case is
entitled to judicial review by way of appeal under this
 CONNECTICUT LAW JOURNAL August 3,

800 AUGUST, 1993 226 Conn. 792

Summit Hydropower Partnership v. Commr. of Environmental Protection
chapter . . . "n (Emphasis added.) A "contested
case" is defined in $ 4-166 (2) as "a proceeding ...
in which the legal rights, duties or privileges of a party
are required by statute to be determined by an agency
after an opportunity for hearing or in which a hearing
is in fact held . . . ." (Emphasis added.)
The statutory requirement that an appeal to the
Superior Court may be taken only from a contested case
as defined in § 4-166 (2) is an obvious indicator that the
legislature did not intend to authorize a right of appeal
to the Superior Court from every determination of an
axlministrative agency. See New England Dairies, Inc.
v. Commissioner ofAgriculture, 221 Conn. 422, 427,
604 A.2d 810 (1992); Connecticut Bank & Trust Co. v.
Commission on Human Rights & Opportunities, 202
Conn. 150, 154, 520 A.2d 186 (1987). "The UAPA
grants the Superior Court jurisdiction over appeals of
agency decisions only in certain limited and well
delineated circumstances." New England Dairies, Inc.
V. Commissioner ofAgriculture, supra.
"[W]e have determined that even in a case where a
hearing is 'in fact held/ in order to constitute a con
tested case, a party to that hearing must have enjoyed
a statutory right to have his legal rights, duties, or priv
ileges' determined by that agency holding the hear
ing. . . . In the instance where no party to a hearing
enjoys such a right, the Superior Court is withoutjuris
diction over any appeal from that agency's determina
tion." (Citations omitted.) Id. In Herman v. Division
ofSpecial Revenue, 193 Conn. 379, 382, 477 A.2d 119
(1984), we stated: "The test for determining contested
case status has been well established and requires an
inquiry into three criteria, to wit: (1) whether a legal
right, duty or privilege is at issue, (2) and is statutorily
" Because this proceeding before the commissioner commenced on or
about April 8, 1988, it is governed by the provisions of the UAPA in effect
prior to July 1, 1989. Public Acts 1988, No. 88-317, $$ 1, 23.
August 3, 1993 CONNECTICUT LAW JOURNAL Page 67

226 Conn. 792 AUGUST, 1993 801

Summit Hydropower Partnership v. Cotnmr. of Environmental Protection
required to be determined by the agency, (3) through
an opportunity for hearing or in which a hearing is in
fact held." (Emphasis added.)
In April, 1992, the defendants filed a motion in the
Superior Court to dismiss the plaintiffs action based
on the lack of subject matter jurisdiction. In their
motion the defendants claimed, among other things
that the adrninistrative proceeding, in which the $ 401
certification had been determined adversely to the
plaintiff, was not a "contested case" as defined in
$ 4-166 (2).1S

The trial court denied the defendants' motion to dis

miss. In its memorandum of decision addressing the
defendants' motion, the court concluded that the plain
tiffs appeal was from a contested case as defined in
$ 4-166 (2) and that the court had subject matter juris
diction over the appeal. The trial court noted that the
proceedings before the commissioner satisfied Her
man's three-pronged test. Specifically, the trial court,
in addressing the first two prongs of the Herman test,
stated that the plaintiff was legally required to obtain
a § 401 certificate from the commissioner as a prereq
uisite to obtaining a federal license to build the pro
posed hydroelectric facility and that the commissioner
was required by statute to determine such right after
providing an opportunity for a meaningful hearing. The
trial court finally noted that because a hearing in fact
had been held, regardless of whether it was statutorily
mandated, the third prong of the Herman test was
satisfied and that consequently the plaintiff had a right
to appeal.
It is undisputed that the § 401 certification process
is part of a licensing scheme in which the plaintiffs
" The commissioner also argued that the trial court did not have subject
matter jurisdiction because the plaintiff had not exhausted its administra
tive remedies because it failed to seek a declaratory ruling pursuant to Gen
eral Statutes $ 4-176.
 A12

Page 68 CONNECTICUT LAW JOURNAL August 3, 1993

802 AUGUST, 1993 226 Conn. 792

Summit Hydropower Partnership v. Commr. of Environmental Protection
right to a certificate is placed in issue. Under § 4-166 (6)
of the UAPA, a "license" is defined to include "the
whole or part of any agency permit, certificate,
approval, registration, charter or similar form of per-
mission required by law . . . ." Even if, however, the
plaintiff had a legal right or privilege to $ 401 certifi
cation, and even if that right or privilege was denied
in a proceeding before the commissioner, the plaintiff
does not have a right to appeal unless the commissioner
was statutorily required to determine the plaintiffs
legal right or privilege to § 401 certification in a hear
ing or after an opportunity for a hearing. See, e.g.,
Lewis v. Gaming Policy Board, 224 Conn. 693,
700-701, 620 A.2d 780 (1993) (gaming policy board was
not required by statute to provide a hearing to deter
mine the continued employment of former head of the
lottery unit after his employment was terminated); New
England Dairies, Inc. v. Commissions ofAgriculture,
supra, 429 (commissioner of agriculture was not
required by statute to determine a milk dealer's right
to a license after an opportunity for a hearing); Rybin-
ski v. $tate Employee's Retirement Commission, 173
, , , Conn. 462, 471, 378 A.2d 547 (1977) (commission was
not required by statute to provide an opportunity for
a hearing prior to denying a state employee's written
request to change retirement plans); Taylor v. Robin
son, 171 Conn. 691, 372 A.2d 102 (1976) (parole board
had no statutory obligation to determine if a prisoner
should be released from parole).

If the plaintiffs rights or privileges were not

statutorily required to be determined by the agency in
a hearing or after an opportunity for a hearing, a "con
tested case" would not exist and the plaintiff would
have no right to appeal pursuant to $ 4-183 (a). To
ascertain whether a statute requires an agency to deter
mine the legal rights or privileges of a party in a hear
ing or after an opportunity for a hearing, "we need to
August 3, 1993 CONNECTICUT LAW JOURNAL Page 69

226 Conn. 792 AUGUST, 1993 803

Summit Hydropower Partnership v. Commr. of Environmental Protection
examine all the statutory provisions that govern the
activities of the particular agency or agencies in ques
tion." Lewis v. Gaming Policy Board, supra. Because
the commissioner was governed in this proceeding by
both state and federal statutes, we need to review both
state and federal legislation to determine whether the
proceedings before the commissioner constituted a con
tested case.14
The trial court noted in its memorandum of decision
that the commissioner was required by federal law, spe
cifically $ 401 (a) (1) of the CWA, to determine the
plaintiffs right to $ 401 certification. That section pro
vides, in relevant part, that each state "shall establish
procedures for public notice in the case of all applica
tions for certification by it and, to the extent it deems
appropriate, procedures for public hearings in connec
tion with specific applications." 33 U.S.C. $ 1341 (a)
(1988).
The trial court concluded that because obtaining
§ 401 certification is, pursuant to federal law, a prereq
uisite for obtaining a license to construct the proposed
hydroelectic project, the commissioner was statutorily
required to determine the plaintiffs right to certifica
tion in a hearing or after an opportunity for a hear
ing. The trial court supported its conclusion by noting
that the state statutes governing the scope of author
ity of the commissioner suggest that the commissioner
was statutorily required to determine the plaintiffs
right to $ 401 certification in a hearing or after an
opportunity for a hearing. It noted, for instance, that
14 Although not addressed by the parties to this case, it is far from clear
whether the "required by statute" language in General Statutes (Rev. to
1987) S 4-166 (2) does in fact refer to federal statutory law. Because the
parties assume that reference should be made to both state and federal
law in order to assess whether the commissioner was required by statute
to determine the plaintiffs request for $ 401 certification, we assume,
strictly for the purposes of this appeal, that the "required by statute" lan
guage incorporates federal statutory law.
Page 70 CONNECTICUT LAW JOURNAL August 3, 1993

804 AUGUST, 1993 226 Conn. 792

Summit Hydropower Partnership v. Commr. of Environmental Protection
General Statutes $ 22a-424 provides in relevant part
that the commissioner shall have the following powers:
"(g) To hold such hearings as may be required under
the provisions of this chapter and the federal Water
Pollution Control Act and other applicable federal law,
for which he shall have the power to issue notices by
certified mail, administer oaths, take testimony and
subpoena witnesses and evidence ... (k) To exercise
all incidental powers necessary to carry out the pur
pose of this chapter and the federal Water Pollution
Control Act . . . ." The trial court inferred from the
grant of these powers that the legislature had intended
the commissioner to exercise them in such a fashion
as to require a hearing or an opportunity for a hear
ing to those individuals requesting § 401 certification.
We disagree.

Although the commissioner clearly afforded the plain

tiff a hearing that in fact was held, the commissioner
was not statutorily required to do so. Neither $ 401 of
the CWA nor General Statutes $ 22a-424 required the
commissioner to determine the plaintiffs right to $ 401
certification in a hearing. The procedures that any state
need adopt to process $ 401 water quality certification
requests are determined by the statutes promulgated
by each state. See Keating v. Federal Energy Regula
tory Commission, 927 F.2d 616, 622 (D.C. Cir. 1991);
Roosevelt CampobeUo International Park v. United
States Environmental Protection Agency, 684 F.2d
1041, 1056 (1st Cir. 1982); see also Mobile Oil Corpo
ration v. KeUey, 426 F. Sup. 230, 234 (S.D. Ala. 1976)
("certification under Section 401 is set up as an exclu
sive prerogative of the state and is not to be reviewed
by [the Environmental Protection Agency] or any
agency of the federal government"). The plain word
ing of $ 401 requires only that a state agency be autho
rized to establish procedures to determine whether
submitted requests for $ 401 certification are meritori-
 A15

August 3, 1993 CONNECTICUT LAW JOURNAL

226 Conn. 792 AUGUST, 1993 805

Summit Hydropower Partnership v. Commr. of Environmental Protection
ous. Moreover, the legislative history of $ 401 is devoid
of any legislative mandate that the designated state
agency require a $ 401 certification hearing. The most
applicable legislative history reads: "[The] provision
[$ 401] makes clear that any water quality requirements
established under State law, more stringent than those
requirements established under this Act, also shall
through certification become conditions on any Fed
eral license or permit. The purpose of the certification
mechanism provided in this law is to assure that Fed
eral licensing or permitting agencies cannot override
State water quality requirements." S. Rep. No. 92-414,
92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong.
& Admin. News 3735. Although it is abundantly clear
that the commissioner is statutorily authorized to estab
lish procedures to determine requests for $ 401 certifi
cation, it does not follow that he is statutorily required
to provide a hearing to make those determinations. See
Trisha v. Department ofHealth & Environmental Con
trol, 292 S.C. 190, 196-97, 355 S.E.2d 531 (1987) (court
did not find that $ 401 of the federal CWA,required
that the agency determine a party's right to a § 401
certificate in a hearing).

Nor does General Statutes $ 22a-424 require that the

commissioner provide a hearing to determine the plain
tiffs $ 401 certification request Section 22a-424 merely
authorizes the commissioner to establish certain proce
dures and to exercise certain powers incidental thereto.
To conclude that $ 22a-424 mandates that the commis
sioner make a S 401 determination in a hearing or after
an opportunity for a hearing would confuse "can" with
"must" and would establish by judicial fiat a statutory
requirement that the legislature did not in fact create.
"The intent of the legislature, as this court has repeat
edly observed, is to be found not in what the legisla
ture meant to say, but in the meaning of what it did
say." Bumham v. Administrator ofthe Unemployment
Page 72 CONNECTICUT LAW JOURNAL August 3, 1993

806 AUGUST, 1993 226 Conn. 792

Summit Hydropower Partnership v. Conunr. of Environmental Protection
Compensation Act, 184 Conn. 317, 325, 439 A.2d 1008
(1981); Federal Aviation Administration v. Adminis
trator of the Unemployment Compensation Act, 196
Conn. 546, 549-50, 494 A.2d 564 (1985). Neither our
state statutes nor applicable federal statutes include
any reference to a required hearing to determine § 401
certification requests. The applicable statutes, if they
imply anything, imply only that Congress and the Gen
eral Assembly intended that the commissioner estab
lish procedures to determine the legal rights of
applicants seeking § 401 certification. The degree of
procedural formality that the commissioner was to pro
vide to adjudicate such claims, however, was clearly
left to his discretion. Consequently, in the absence of
an express statutory requirement that the commis
sioner afford a hearing to determine the plaintiffs
entitlement to $ 401 certification, the trial court
improperly concluded that the proceedings wherein the
plaintiffs $ 401 certificate was denied constituted a
contested case under $ 4-166 (2).

Our conclusion is consistent with the holding of the

South Carolina Supreme Court in Triska v. Department
ofHealth & Environmental Control, supra. In Triska,
the court addressed the issue of whether its state
environmental agency's denial of a § 401 certificate
constituted a contested case from which a party had
a right to judicial review of the agency's decision under
South Carolina's administrative procedure act. The
South Carolina agency in question had held a hearing
on and denied a $ 401 certification request. The plain
tiff who had requested $ 401 certification appealed that
decision to the trial court. The trial court sustained the
appeal. The South Carolina Supreme Court, after
examining the statutes applicable to the § 401 certifi
cation process, held that "[t]here is no requirement in
South Carolina law or Federal law that there be an
August 3, 1993 CONNECTICUT LAW JOURNAL Page 73

226 Conn. 792 AUGUST, 1993 807

Summit Hydropower Partnership v. Commr. of Environmental Protection
opportunity for a hearing in a 401 Certification, and
therefore, a 'contested case' does not exist in which
an adjudicatory hearing is required."16 Id.

The plaintiff argues, however, that under the plain

meaning of $ 4-166 (2) there is no requirement that a
hearing must be statutorily mandated in order to
qualify for contested case status. The plaintiff urges
us to construe the phrase "or in which a hearing is in
fact held" in $ 4-166 (2) to stand independently of the
"required by statute" language preceding it. The plain
tiff argues that once the first two prongs of the test
set forth in Herman v. Division of Special Revenue,
supra, 382, are satisfied, that is, once there exists a
right, duty or privilege at issue that an agency is
required by statute to determine, then it is irrelevant
whether any hearing held to determine such right, duty
or privilege is required by statute. Therefore, accord
ing to the plaintiff, any time a hearing is provided by
an agency, that hearing, even if gratuitous, would
satisfy Herman's third prong and, assuming the satis
faction of the first two prongs, render such a proceed
ing a contested case for the purpose of $ 4-166 (2).16
Otherwise, the plaintiff asserts, the "hearing in fact"
language contained in $ 4-166 (2) would be superfluous,
a result not likely to have been intended by the legis
lature because " ' "statutes should be construed so that
no part of a legislative enactment is to be treated as
insignificant and unnecessary, and there is a presump-
" Section 1-23-310 (2) of the South Carolina Code of Laws Annotated
(1986) defines "contested case" as "a proceeding . . . in which the legal
rights, duties, or privileges of a party are required by law to be determined
by an agency after an opportunity for a hearing , . . ." Like Connecti
cut's definition of a contested case, the South Carolina definition is derived
from the 1961 Uniform Model Act. See Model State Administrative Pro
cedure Act (1961) $ 1 (2), 14 U.L.A. 137 (1980).
" The trial court also noted that "(t]hc third requirement, however, is
that a statute either require an opportunity for a hearing or in which a hear
ing is in fact held . . . The statute does not require both."
74 CONNECTICUT LAW JOURNAL Auguot 3, 1993

808 AUGUST, 1993 226 Conn. 792

Summit Hydropower Partnership v. Commr. ofEnvironmental Protection
tion of purpose behind every sentence, clause or phrase
in a legislative enactment." ' " H Century Limited
Partnership v. Board of Tax Review, 207 Conn. 250,
263, 541 A.2d 478 (1988). We are unpersuaded.
" 'In construing a statute, common sense must be
used, and courts will assume that the legislature
intended to accomplish a reasonable and rational
result.' " King v. Board ofEducaMon, 203 Conn. 324,
332-33,. 524 A.2d 1131 (1987). Legislative intent is not
to be found in an isolated phrase or sentence. Gentry
v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985).
When § 4-166 (2) is read as a whole, it is evident that
the phrase "required by statute to be determined by
an agency after an opportunity for a hearing" cannot
be divorced from the phrase "or in which a hearing is
in fact held." If it were otherwise, every time an agency
gratuitously conducted a hearing, a "contested case"
could be spawned. Such an interpretation of § 4-166 (2)
would chill, to the detriment of those petitioning the
agency, the inclination of an agency to hold any type
of an inquiry to gather information when it was not
required by statute to do so. We believe, consequently,
that the phrase "or in which a hearing is in fact held"
was not intended by the legislature to mean that if a
hearing, not required by statute, is in fact held by
agency dispensation, it will result in a contested case.
Rather, a hearing must be statutorily required before
a matter achieves contested case status.
Moreover, although the definition of "contested case"
in § 4-166 (2) is a grammatical quagmire, the legisla
tive history and policy underlying it suggest that we
interpret the "hearing in fact" language as being intrin
sically connected to the "required by statute" language
therein so that in order for a hearing to result in a con
tested case, the hearing must be statutorily required
to be held by the agency. The phrase contained in
§ 4-166 (2), "or in which a hearing is in fact held," was
August 3, 1993 CONNECTICUT LAW JOURNAL Page

226 Conn. 792 AUGUST, 1993 809

Summit Hydropower Partnership v. Commr. of Environmental Protection
appended to the original definition of contested case
in 1973.17 This addition was part of an amendment pro
posed from the floor of the House of Representatives
on May 15, 1973. Public Acts 1973, No. 73-620, $ 2. At
that time, Representative Russell L. Post, Jr., stated
that the proposed amendment sought "to correct an
ambiguity created by a Court decision within the last
month having to do with the definition of contested
cases . . . ." 16 H.R. Proc, Pt. 13, 1973 Sess.,
p. 6436. The case apparently referred to by Represen
tative Post is McAulijfe v. Carlson, 30 Conn. Sup. 118
(1973), which was published in the May 1, 1973 issue
of the Connecticut Law Journal.
In McAvliffe v. Carlson, supra, the plaintiff had
sought an appeal from an administrative ruling refus
ing him reimbursement of payments that he had made
for his care in a security treatment center. The ruling
in question was not made in a hearing or after an oppor
tunity for a hearing, and no statute required that it be
made in such a fashion. Id., 119. The court in McAvliffe
noted: "The General Assembly did not desire to make
the UAPA a vehicle for appeal of any and all adminis
trative orders or decisions made by a state agency. The
act was clearly designed to permit appeals only upon
compliance with the statutory conditions set forth
therein, including the specific provisions for the con
duct of a hearing, or the opportunity for a hearing."
Id., 120-21. In discussing the issue of whether a hear-
1T An examination of the definition of a "contested case" in other juris
dictions that, like Connecticut, adopted the 1961 Model State Administra
tive Procedure Act's version of contested case; see Model State
Administrative Procedure Act<1961) S 1 (2), 14 U.L.A. 187(1980), reveals
that the phrase "or in which a hearing is in fact held," as appended to the
original definition of contested case in General Statutes $ 4-166 (2), appears
only in the Connecticut statute.
The federal statute states that the provisions pertaining to formal adju
dication apply ''in every caso of adjudication required by statute to be deter
mined on the record after opportunity for an agency hearing . , . ."
(Emphasis added.) B U.S.C. $ 654 (a) (1988).
Page 76 CONNECTICUT LAW JOURNAL August 3,

810 AUGUST, 1993 226 Conn. 792

Summit Hydropower Partnership v. Commr. of Environmental Protection
ing was statutorily required, the court noted that such
a requirement underscores the importance that appeals
from administrative agency decisions be available only
from formal adjudications. Id., 121. The court con
cluded that because there was no statute requiring that
the agency make a determination in a formal hearing
of the plaintiffs right to reimbursement, the plaintiff
had not appealed from a contested case. The court at
one point in its memorandum, however, stated:
"Nevertheless, it was not a 'contested case' permitting
judicial review thereof, under the UAPA, since no hear
ing was required, or held." (Emphasis added.) Id., 120.
It appears that, by amending § 4-166 (2) to add the
phrase "or in which a hearing is in fact held" to the
definition of contested case, the legislature was not
manifesting its intention to provide judicial review
whenever an agency furnished a gratuitous hearing,
but sought rather to maintain the rigid requirements
for a contested case by eliminating any possible con
fusion generated by the ambiguous language in McAulijfe
that a determination by an agency after a hearing was
held, without a statutory right to a hearing, would be
sufficient to constitute a contested case. We therefore
reject the plaintiffs contention that the "hearing in
fact" language in § 4-166 (2) was appended to trans
form every administrative proceeding in which a hear
ing is accorded into a contested case even if a hearing
is not statutorily required.
Our conclusion is further supported by the desirabil
ity of ensuring that "the legislature, rather than the
agencies, has the primary and continuing role in decid
ing which class of proceedings should enjoy the full
panoply of procedural protections afforded by the
UAPA to contested cases, including the right to appel
late review by the judiciary. Deciding which class of
cases qualify for contested case status reflects an
important matter of public policy and 'the primary
August 3, 1993 CONNECTICUT LAW JOURNAL Page 77

226 Conn. 792 AUGUST, 1993 811

Summit Hydropower Partnership v. Commr. of Environmental Protection
responsibility for formulating public policy must remain
with the legislature.' State v. Whiteman, 204 Conn. 98,
103, 526 A.2d 869 (1987); see KeUems v. Brown, 163
Conn. 478, 491, 313 A.2d 53 (1972), appeal dismissed,
409 U.S. 1099, 93 S. a. 911, 34 L. Ed. 2d 678 (1973)."
Lewis v. Gaming Policy Board, supra, 709."

In summary, we read $ 4-166 (2) as manifesting a

legislative intention to limit contested case status to
proceedings in which an agency is required by statute
to provide an opportunity for a hearing to determine
a party's legal rights or privileges.19 No such statute
mandated that the commissioner hold a hearing to
determine the plaintiffs entitlement to $ 401 certifi
cation. We conclude therefore that the proceeding in
which the plaintiffs request for such certification was
11 Although the plaintiff cannot appeal to the Superior Court from the
administrative decision denying its $ 401 certification request under the
UAPA, it is not without recourse. It may still petition the commissioner
for a declaratory ruling pursuant to General Statutes $ 4-176 as to whether
the state's water quality standards Were properly applied to the plaintiffs
proposed project. Section 4-176 provides in relevant part: "(a) Any person
may petition an agency, or an agency may on its own motion initiate a pro
ceeding, for a declaratory ruling as to the validity of any regulation, or
the applicability to specified circumstances of a provision of the general
statutes, a regulation, or a final decision on a matter within the jurisdic
tion of the agency."
" Since tho decision in Herman v. Division ofSpecial Revenue, 193 Conn.
379, 382, 477 A.2d 119 (1984), this court has interpreted General Statutes
S 4-166 (2) to limit a "contested case" to a proceeding in which an agency
has been statutorily required to determine a party's legal interest in a hear
ing or after an opportunity for a hearing. See Lewis v. GamingPolicy Board,
224 Conn. 098, 701, 620 AJ2d 780 (1993); NewEngland Dairies, Inc. v. Com
missioner ofAgriculture, 221 Conn. 422, 429, 604 A.2d 810 (1992). If our
interpretation had been incorrect, the legislature surely would have under
taken to amend the statute. The legislature has not done so, even though
it has enacted other major revisions of the Uniform Administrative Proce
dures Act since that time. Such legislative inaction is indicative of legisla
tive acquiescence in our interpretation of $ 4-166 (2), Farmers & Mectianics
Savings Bank v. Garqfalo, 219 Conn. 810, 817, 595 A.2d 341 (1991); Scheyd
v. Bezrucik, 205 Conn. 495, 506, 535 A.2d 798 (1987); PMps Dodge Cop
per Products Co. v, Groppo, 204 Conn. 122, 134, 627 A.2d 672 (1987).
812 AUGUST, 1993 226 Conn. 812
Hotz Corporation v, Carabetta
denied was not a contested case and was therefore not
a final decision from which the plaintiff had a right to
appeal pursuant to $ 4-183 (ajd Consequently, we
reverse the judgment and order the trial court to dis
miss the plaintiffs administrative appeal for lack of sub
ject matter jurisdiction.

The judgment is reversed and the case is remanded

with direction to dismiss the plaintiff's appeal,

In this opinion the other justices concurred.

Hotz Corporation v. Joseph F. Carabetc1a et al,

(14668)

Callahan, Bobden, Beudon, Katz and Palmer, Jb.

Arguod Juno 10-deciaion roloased August 8, 1993

Application for an ex parte attachment and garnish

ment of funds to secure from the defendants the pro
ceeds of an arbitration award issued to the plaintiff
against Carabetta Builders, Inc., brought to the Supe
rior Court in the judicial district of New Haven, where
the court, DeMayo, J„ granted the application, from
which the defendants appealed. Reversed;further pro
ceedings.

Dominic J, Aprile, pro hac vice, with whom was

Thomas E. Katcm, for the appellants (defendants).
Thomas G. Librizzi, with whom, on the brief, was
Brim Preleski, for the appellee (plaintiff).

Per Curiam. The principal issue in this appeal is

whether the defendants, Joseph F. Carabetta and
Carabetta Enterprises, Inc. (Carabetta Enterprises),
were afforded "the rlorhttn annear and he heard " nnr.
 A23.

CERTIFICATION PURSUANT TO RULE 2105

I, Kathleen Liston Morrison, Assistant Attorney General,

in the Department of Law of the State of New York, do hereby

certify, pursuant to Rule 2105, that the foregoing papers which

constitute the Appendix have been compared by me with the

originals and found to be true and complete copies of said

originals.

DATED: Albany, New York

September 3, 1993

ROBERT ABRAMS
Attorney General