You asked a series of questions regarding the relationship between infrastructure development and the State Plan of Conservation and Development (Plan of C&D), which we answer in turn. The Office of Legislative Research is not authorized to issue legal opinions, and this report should not be considered one.

1. Has or can the Department of Environmental Protection (DEP) prohibit a proposed privately-funded sewer expansion that has received local approvals for reasons other than technical deficiencies, such as inconsistency with the Plan of C&D?

Under CGS § 22a-416, the DEP commissioner must examine all existing and proposed disposal systems. Any construction of a new disposal system or expansion or replacement of an existing system, except for certain industrial wastewater systems, requires the DEP commissioner's approval. Under CGS § 22a-423, disposal systems include systems for disposing of or eliminating wastes by surface or underground methods, including sewage systems, pollution abatement facilities, disposal wells, and other systems. It appears that the approval requirement applies to privately as well as publicly-funded expansions.

As discussed below, under CGS § 16a-31, the authorization of state grants for certain capital projects of $ 100,000 or more must be consistent with the Plan of C&D. Sewer line extensions are often partially funded from grants from the state's Clean Water Fund, and DEP will generally not approve such projects if they are inconsistent with the Plan of C&D.

In addition, as a matter of policy, DEP will not approve privately funded projects that tie into wastewater facilities that have been built with state or federal funds, unless the project is intended to solve an existing pollution problem (see May 5, 2005 letter from DEP Commissioner Gina McCarthy to Rep. Craig Miner, enclosed). DEP's rationale for this policy is that funding such projects would allow a private project that is inconsistent with the Plan of C&D to benefit from publicly funded projects that are consistent with the plan.

If the private project connects with a municipal system that has not received state or federal funds, DEP will not consider consistency with the Plan of C&D in determining whether to approve the extension. However, DEP will inform the municipality that such extensions may limit its ability to get future state funds for wastewater infrastructure.

2. Under CGS § 16a-31, consistency with the Plan of C&D is required, among other circumstances, when a state agency funds the purchase, development, or improvement of real estate costing more than $ 100,000. Does the construction, upgrade, or improvement of municipal sewer facilities fall within the scope of development or improvement of real estate? Is DEP's application of this law consistent with legislative intent?

Some sewer facilities, such as pumping and treatment facilities, would appear to constitute real estate. Others, such as sewer lines, would normally be considered improvements to real estate. On the other hand, some equipment used in sewer facilities, such as testing and measurement equipment, might be considered personal property rather than real estate or improvements to real estate.

The consistency requirement of CGS § 16a-31 was added by PA 91-395 (previously, the plan was purely an advisory document. ) The legislative history of PA 91-395, which principally dealt with global warming, did not address the issue of sewer projects.

3. Did DEP engage in the rule-making process under the Uniform Administrative Procedures Act (UAPA) in adopting its current policy of potentially denying future funding for sewer projects when a water pollution control authority permits a privately-funded sewer extension in an area designated as open space, preservation, conservation, or rural land under the Plan of C&D?

No. Several years ago, DEP adopted the policy of informing municipalities that if (1) they permit a privately-funded sewer extension that was inconsistent with the Plan of C&D and (2) this extension results in the need for additional sewage treatment capacity, the inconsistency of the private project with the plan could jeopardize future state funding for the expansion of sewage treatment capacity. DEP's view, according to Tom Tyler, DEP's legislative liaison, is that this is simply an interpretation of existing law, and that as a result DEP did not go through the rule-making process in developing this interpretation.

However, Conn. Agencies Regs. § 22a-439-2, which was adopted pursuant to UAPA, does bar the use of DEP grant funds for pollution abatement facilities, e. g. , sewage treatment plants, that “would provide capacity for new connections or other developments to be located in environmentally sensitive land such as wetlands, floodplains, prime agricultural lands, or regulated coastal zones. ” There is a substantial overlap between these lands and the areas designated as open space, preservation, conservation, or rural land under the Plan of C&D.

4. How is the extension of sewers into areas with these four designations inconsistent with the Plan of C&D? Does the Plan of C&D treat the extension of sewer lines into each four types of areas the same way?

Under the Plan of C&D, the state must target funding for sewers and other infrastructure. It urges that the state support existing communities and neighborhoods by targeting state resources to support infrastructure improvement and development in areas where the infrastructure is already in place (p. 20).

The Plan of C&D does not specifically address the extension of sewer lines into the four types of areas. Instead, in aquifer protection areas in all four areas and in all watersheds, the plan recommends that sewer collector systems (and certain other infrastructure) be introduced

only after a thorough evaluation of all private and public alternatives determines these systems are the only feasible solution to an existing pollution problem, and the facility design and capacity will not induce further intensive structural development with attendant surface runoff threats to water supply quality. Plans for facilities that are excessively sized or that extend to areas where alternative remedial measures are possible shall not be approved. (p. 84)

5. Before implementing its policy, did DEP consult with the Office of Policy and Management (OPM) regarding the proposed policy?

According to OPM Undersecretary David LeVasseur, whose responsibilities include the development of the Plan of C&D, DEP staff consulted with OPM staff regarding DEP's policy either before or shortly after DEP developed the policy. OPM agreed with the policy in principle, although it did not issue any formal guidance on the issue.

6. Does DEP currently require consistency with the Plan of C&D or does it simply review applications on the basis of consistency with engineering standards?

As described in Commissioner McCarthy's May 5, 2005 letter, DEP requires consistency with the Plan of C&D if (1) the project receives more than $ 100,000 in state grants or (2) if the project is privately funded, but connects with facilities that received state or federal funds and the project is not intended to solve an existing pollution problem. All projects must meet extensive engineering requirements.

7. Are municipal sewer facilities plans required to be consistent with the Plan of C&D, and if so, on what basis?

CGS § 7-246 allows water pollution control authorities (WPCA) to prepare water pollution control plans that contain, among other things, a designation of areas (1) already served by municipal sewerage systems, (2) where municipal sewerage facilities are planned, and (3) where sewers are to be avoided. The authority must file the plan and any updates of it with DEP. DEP uses the plan to evaluate the need for new sewer facilities and their proper sizing when a municipality seeks funding for projects from the Clean Water Fund.

It does not appear that the WPCA plan needs to be consistent with the Plan of C&D, since the adoption of the plan is not mandated. DEP does encourage towns to undertake wastewater facilities planning in a way that sewer service areas are consistent with the Plan of C&D, thereby ensuring the eligibility of future projects for state funding.

In practice, OPM uses local plans as a significant input in the development of the state Plan of C&D. In some cases, OPM has found that local officials have neglected to inform the office of changes in local plans when OPM has updated the Plan of C&D, for example in changes in areas planned to be sewered.

8. Has the Department of Public Health (DPH) adopted a policy similar to DEP's with regard to the extension of water mains into areas designated as open space, preservation, conservation, or rural land under the Plan of C&D?

No. PA 06-98 specifically states that no prior DPH approval is need for distribution water main installations so long as they are constructed according to sound engineering standards and all applicable laws and regulations. Instead, water utilities must report to DPH annually on the number and location of new installations. These provisions apply to water mains that do not require construction or expansion of pumping stations, storage or treatment facilities, or water supply sources.

Water main extensions are commonly funded by water utilities or private developers rather than with state funds. However, if an extension is funded by $ 100,000 or more of state grants, is must be consistent with the Plan of C&D under CGS § 16a-31.

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