OLR Research Report

February 18, 2005




By: Paul Frisman, Associate Analyst

You asked for a summary of the Connecticut Supreme Court's decision in Waterbury v. Washington (260 Conn. 506 (2002)). This report focuses only on the Court's review of the case's Connecticut Environmental Protection Act (CEPA) claims.


In Waterbury v. Washington, the state Supreme Court held that Waterbury's diversion of the Shepaug River, which lowered the river's water flow, did not violate CEPA because the lower water level met the state's minimum stream flow requirements.

CEPA allows individuals, towns, and organizations to sue in Superior Court to protect the air, water, or other natural resources from unreasonable pollution, impairment, or destruction.


The Supreme Court's decision addressed a century-old dispute between the city of Waterbury, which uses the Shepaug River as a source of drinking water, and the town of Washington, through which the river flows. In 1893, the legislature authorized Waterbury to increase its

water supply by taking water from any source within New Haven and Litchfield counties. Washington, concerned about the impact on the Shepaug, sought legislation to repeal the 1893 Special Act, but withdrew it upon concluding a contract with Waterbury in 1921 setting out the terms of future withdrawals from the river.

In recent years residents along the Shepaug suspected that Waterbury's withdrawal of water was causing extremely low flow in the summer months, “diminishing [the river's] natural beauty, reducing it as a habitat for fish and river organisms, and limiting its value for fishing and other recreation” (260 Conn. 518). They brought their concerns to the Department of Environmental Protection (DEP), which created a task force to study the problem. But the task force failed to resolve the differences and both sides brought the matter to court in 1997. The town of Roxbury, the Shepaug River Association, the Steep Rock Association and the Roxbury Land Trust joined Washington. The towns of Wolcott, Watertown and Middlebury, which get all or part of their water supply from Waterbury, sided with that city. The Connecticut Fund for the Environment intervened in the case, and asserted a number of claims against Waterbury. The DEP and Public Health department also intervened to ensure that the public water supply and environment were protected. For the purposes of this report we will refer to the opposing parties as Washington and Waterbury.

Washington claimed, among other things, that Waterbury's diversion of the river violated CEPA (CGS 22a-14 et seq.), which allows people, towns and organizations to sue to protect the public's interest in the state's natural resources. Washington claimed the diversion unreasonably impaired the public's interest in the Shepaug.

Trial Judge Beverly J. Hodgson ruled in favor of Washington in 2000, finding that Waterbury had violated CEPA. The judge enjoined the city from diverting water from the Shepaug and operating its water supply system unless it met certain conditions. Waterbury appealed and the Supreme Court reversed, ordering a new trial on the CEPA and other claims.

According to Rich Kehoe, legislative liaison for the attorney general's office, the new trial has not taken place because the parties are involved in settlement negotiations.


Waterbury contended that its diversion of the Shepaug was not unreasonable because the river met applicable state minimum stream flow regulations. The regulations, which took effect in 1979, apply to rivers that the DEP stocks with fish, including the Shepaug.

Washington argued that the stream flow standards were not an appropriate measure of the river's overall environmental condition under CEPA because they dealt only with the protection of fish. It also contended that (1) CEPA overrode other state environmental laws, and (2) the stream flow regulations did not adequately protect the river.

The Supreme Court found that Waterbury's withdrawal of drinking water did impair the Shepaug, but that the impairment was not unreasonable under CEPA.

The Court held that the legislature had put in place a regulatory scheme -- minimum stream flow regulations -- to govern the particular conduct about which Washington was complaining. The Court reasoned that if the river met the state standards the impairment could not be unreasonable.

In reaching this conclusion, the Court cited the “overriding principle” that statutes should be read to create a rational, coherent and consistent body of law. It would not make sense, the Court stated, to have a two-track regulatory scheme that required conduct to comply with specific criteria (minimum stream flow standards) on the one hand, and a general standard of reasonableness (CEPA) on the other, regardless of whether the conduct met the first standard.

The Court acknowledged that when CEPA was enacted in 1971 there was considerable “legislative skepticism” about the effectiveness of environmental agencies, and a resulting legislative preference for judicial determination of what constituted unreasonable impairment of a natural resource. But the Court noted that the state had since enacted numerous environmental regulatory programs, and that these must be read in conjunction with CEPA.

The Court found nothing in CEPA's language, purpose or legislative history to indicate that it was meant to “trump” other environmental laws.

The Court also found that the stream flow law and regulations were not limited to protecting fish, but were part of a comprehensive scheme to accommodate many interests and concerns. The Court found support for its position both in its review of the stream flow statute (CGS 26-141b) and its review of the statute's legislative history.

CGS 26-141b directs the DEP commissioner to develop minimum stream flow regulations and tells him what he must consider in drafting them. In addition to maintaining a sufficient stream flow to protect fish, he was to preserve and protect natural and stocked wildlife depending on the water flow, promote and protect the use of the water for public recreation, and be consistent with public health, flood control, industrial, public utility, public safety and agricultural needs.

The Court concluded that its review of the law's legislative history confirmed that the law was “concerned with providing a healthy environment for more than just fish” and that it “sought to balance multiple competing interests.”

As for Washington's contention that the minimum stream flow regulations did not adequately protect the river's health, the Court assumed that DEP had complied with the statutory guidelines in drafting the regulations. “If the department now concludes that its regulations do not adequately meet the concerns expressed” in the statute, the court said, “it is free to craft new regulations” (260 Conn. 571).