The principal issue in this appeal is whether the proceedings before an administrative agency, wherein the agency denied the plaintiff's request for state water quality certification for a proposed hydroelectric facility, constituted a "contested case" under General Statutes § 4-166 (2). The plaintiff, Summit Hydropower Partnership, filed an administrative appeal in the Superior Court from a decision of the named defendant,
The following facts are relevant. The plaintiff proposed to construct a hydroelectric facility on the Quinebaug River at Cargill Falls in Putnam. Cargill Falls is located at the center of Putnam. Because of its central 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] community." 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 particular 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.
By letter dated August 10, 1989, the commissioner denied the plaintiff's request for § 401 certification on the ground that the proposed project did not comply with the state's water quality standards.
At the hearing, an adjudicator appointed by the commissioner 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 adjudicator used the class B water quality criteria to evaluate the project.
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
In October, 1991, the plaintiff appealed the commissioner's decision to the Superior Court purportedly pursuant to General Statutes (Rev. to 1987) § 4-183 (a) of the Uniform Administrative Procedure Act (UAPA).
The defendants argue on appeal that the trial court improperly: (1) denied the commissioner's motion to dismiss the plaintiff's administrative appeal because the plaintiff had not adequately exhausted its administrative remedies; (2) concluded that the plaintiff's administrative appeal from the proceedings on its request for § 401 certification constituted a contested case under General Statutes (Rev. to 1987) § 4-166 (2) from which the plaintiff had a right to appeal;
The defendants contend that the trial court incorrectly determined that the proceedings before the environmental protection agency constituted a "contested case" under § 4-166 (2). They argue, consequently, that the court improperly concluded that it possessed subject matter jurisdiction over the plaintiff's appeal. We agree.
Judicial review of an administrative decision is a creature of statute. Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 161, 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 administrative 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
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 administrative agency. See New England Dairies, Inc. v. Commissioner of Agriculture, 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 of Agriculture, supra.
"[W]e have determined that even in a case where a hearing is `in fact held,' in order to constitute a contested case, a party to that hearing must have enjoyed a statutory right to have his `legal rights, duties, or privileges' determined by that agency holding the hearing.... In the instance where no party to a hearing enjoys such a right, the Superior Court is without jurisdiction over any appeal from that agency's determination." (Citations omitted.) Id. In Herman v. Division of Special 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
In April, 1992, the defendants filed a motion in the Superior Court to dismiss the plaintiff's action based on the lack of subject matter jurisdiction. In their motion the defendants claimed, among other things that the administrative proceeding, in which the § 401 certification had been determined adversely to the plaintiff, was not a "contested case" as defined in § 4-166 (2).
The trial court denied the defendants' motion to dismiss. In its memorandum of decision addressing the defendants' motion, the court concluded that the plaintiff's appeal was from a contested case as defined in § 4-166 (2) and that the court had subject matter jurisdiction over the appeal. The trial court noted that the proceedings before the commissioner satisfied Herman'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 prerequisite to obtaining a federal license to build the proposed 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 plaintiff's
If the plaintiff's rights or privileges were not statutorily required to be determined by the agency in a hearing or after an opportunity for a hearing, a "contested 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 determine the legal rights or privileges of a party in a hearing or after an opportunity for a hearing, "we need to
The trial court noted in its memorandum of decision that the commissioner was required by federal law, specifically § 401 (a) (1) of the CWA, to determine the plaintiff's right to § 401 certification. That section provides, in relevant part, that each state "shall establish procedures for public notice in the case of all applications for certification by it and, to the extent that it deems appropriate, procedures for public hearings in connection with specific applications." 33 U.S.C. § 1341 (a) (1) (1988).
The trial court concluded that because obtaining § 401 certification is, pursuant to federal law, a prerequisite for obtaining a license to construct the proposed hydroelectic project, the commissioner was statutorily required to determine the plaintiff's right to certification in a hearing or after an opportunity for a hearing. The trial court supported its conclusion by noting that the state statutes governing the scope of authority of the commissioner suggest that the commissioner was statutorily required to determine the plaintiff's right to § 401 certification in a hearing or after an opportunity for a hearing. It noted, for instance, that
Although the commissioner clearly afforded the plaintiff 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 plaintiff's 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 Regulatory Commission, 927 F.2d 616, 622 (D.C. Cir. 1991); Roosevelt Campobello International Park v. United States Environmental Protection Agency, 684 F.2d 1041, 1056 (1st Cir. 1982); see also Mobile Oil Corporation v. Kelley, 426 F. Sup. 230, 234 (S.D. Ala. 1976) ("certification under Section 401 is set up as an exclusive prerogative of the state and is not to be reviewed by [the Environmental Protection Agency] or any agency of the federal government"). The plain wording of § 401 requires only that a state agency be authorized to establish procedures to determine whether submitted requests for § 401 certification are meritorious.
Nor does General Statutes § 22a-424 require that the commissioner provide a hearing to determine the plaintiffs § 401 certification request. Section 22a-424 merely authorizes the commissioner to establish certain procedures and to exercise certain powers incidental thereto. To conclude that § 22a-424 mandates that the commissioner make a § 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 repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say." Burnham v. Administrator of the Unemployment
Our conclusion is consistent with the holding of the South Carolina Supreme Court in Triska v. Department of Health & 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 plaintiff 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 certification process, held that "[t]here is no requirement in South Carolina law or Federal law that there be an
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 plaintiff 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, according 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 satisfaction of the first two prongs, render such a proceeding a contested case for the purpose of § 4-166 (2).
"`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 of Education, 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 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 legislative history and policy underlying it suggest that we interpret the "hearing is in fact" language as being intrinsically connected to the "required by statute" language therein so that in order for a hearing to result in a contested 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
In McAuliffe v. Carlson, supra, the plaintiff had sought an appeal from an administrative ruling refusing 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 opportunity for a hearing, and no statute required that it be made in such a fashion. Id., 119. The court in McAuliffe noted: "The General Assembly did not desire to make the UAPA a vehicle for appeal of any and all administrative 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 conduct of a hearing, or the opportunity for a hearing." Id., 120-21. In discussing the issue of whether a hearing
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 confusion generated by the ambiguous language in McAuliffe 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 plaintiff's contention that the "hearing is in fact" language in § 4-166 (2) was appended to transform every administrative proceeding in which a hearing is accorded into a contested case even if a hearing is not statutorily required.
Our conclusion is further supported by the desirability of ensuring that "the legislature, rather than the agencies, has the primary and continuing role in deciding which class of proceedings should enjoy the full panoply of procedural protections afforded by the UAPA to contested cases, including the right to appellate review by the judiciary. Deciding which class of cases qualify for contested case status reflects an important matter of public policy and `the primary
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.
The judgment is reversed and the case is remanded with direction to dismiss the plaintiff's appeal.
In this opinion the other justices concurred.
The legislative history of § 401 of the CWA, P.L. 92-500, states: "[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 Federal license or permit. The purpose of the certification mechanism provided 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 3735.
The federal statute states that the provisions pertaining to formal adjudication apply "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing...." (Emphasis added.) 5 U.S.C. § 554 (a) (1988).