68 CBJ 98. Aquifer Protection in Connecticut: Environmental Land Use Restriction Run Deep.

• Author: By THOMAS W. FAHEY, JR. (fn*) AND RICHARD T. ROZNOY (fn**)

Connecticut Bar Journal

Volume 68.

68 CBJ 98.

Aquifer Protection in Connecticut: Environmental Land Use Restriction Run Deep

98Aquifer Protection in Connecticut: Environmental Land Use Restriction Run DeepBy THOMAS W. FAHEY, JR. (fn*) AND RICHARD T. ROZNOY (fn**)Although millions of dollars have been spent on investigating and cleaning groundwater contamination in the United States, complete remediation is probably impossible at some sites. (fn1) Because treatment systems may be needed for generations, agencies entrusted with protection of drinking water groundwater - now focus on pollution prevention by identifying geologic formations containing aquifers, (fn2) then regulating uses that threaten water quality in those areas. This paper addresses state and local action, primarily in Connecticut, to control land use in the name of aquifer protection, and the possibility that these land use restrictions may effect a taking.

1. STATUTORY EMPOWERMENT

   Early reliance on the common law to redress environmental concerns began caving in to statutory approaches when Congress passed the National Environmental Policy Act of 1969; (fn3) Connecticut followed in 1972 with the state's Environmental Protection Act. (fn4) Since then, pollution and protection of the environment have been addressed by an increasing number of statutes and regulations protecting the various resources.

   1. Federal Interests

      1. The Safe Drinking Water Act

      Although the federal government has expressed its concern for protection of the nation's drinking water supply in the Safe Drinking Water Act (SDWA), (fn5) the Act merely empowers the federal government to establish regulations for primary and secondary drinking water standards which may vary according

      99to geographic and other circumstances. (fn6) Certain types of public water systems are exempt from SDWA requirements, (fn7) and states have primary enforcement responsibility through plans that meet federal water quality standards (fn8) Also, states may exempt local public water companies from meeting the standards when "compelling factors (which may include economic factors) [indicate] no reasonable alternative source of drinking water is available ... and ... the granting of the exemption will not result in an unreasonable risk to health (fn9) Thus, the SDWA is not a primary means of protecting drinking water supplies in aquifers.

      2. The Clean Water Act

      Similarly, the Federal Water Pollution Control Act, or Clean Water Act (CWA) (fn10) offers no effective protection of groundwater in the United States. While the CWA once had the potential to do so under section 208 areawide plans, (fn11) that program has been described as currently moribund. (fn12) The § 208 program required that regional, supra-state areawide planning agencies develop comprehensive management schemes controlling all sources of potential water pollution, then have those plans certified by Governors of the affected states; the Governors in turn were to submit the plans to the Federal Environmental Protection Agency (EPA) for approval. (fn13)

      But the § 208 program met with numerous problems, (fn14) including conflict amongst jurisdictions. While § 208 was designed to control land use by regulating any "facility" that might affect water pollution, the program was administered by regional agencies, not local governments, which resisted the displacement of their regulatory authority over land use. Perhaps

      100 one of the most contentious elements of the plan was its reliance on non-technology-based land use controls to curb non-point sources (fn15) of water Pollution; the EPA resisted this approach, claiming a technology-based approach, applied through EPA review of proposed state plans through the National Pollutant Discharge Elimination System (NPDES), (fn16) had been mandated by Congress. Additionally, while the EPA had approval authority for § 208 plans, it did not have authority to write its own if the state's plan was inadequate, unlike EPA's authority to write state NPDES plans. (fn17)

      Eventually the § 208 planning process focused entirely on non-point sources of pollution in navigable waters, (fn18) making it consistent with other aspects of the CWA. Although the CWA gives nominal attention to the nation's groundwater, (fn19) it focuses primarily on an attempt "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" by declaring "a national goal that the discharge of pollutants into the navigable waters be eliminated by 1985. (fn20) Navigable waters" are broadly defined in the CWA to include any accumulation of water which affects or could affect interstate or foreign commerce, (fn21) but not groundwater. (fn22)

      In 1987 § 208 was supplemented by the new § 319 of the CWA, which established technology-based requirements to

      101 control non-point sources of pollution, separate from the areawide planning process. (fn23) During the decade of its empowerment, however - 7 (fn24) through 1987 (fn25) - the § 208 program provided funding for various programs, including the 21 mapping of aquifers by Connecticut municipalities. (fn26)

   2. State Authority in Connecticut

      Federal deferral to state authority for groundwater protection is consistent with powers generally granted to states to protect the public health and welfare of their citizens. (fn27) Authority for protection of aquifers in the State of Connecticut is passed on to municipalities in one of two ways: either as state enabling legislation for municipal zoning control, or as a direct statutory mandate. In the first method, municipalities are required to adopt zoning regulations which "shall be made with reasonable consideration for the protection of existing and potential public ... ground drinking water supplies." (fn28) The second method, a legislative mandate, requires municipalities with a water utility serving at least 1,000 people to take direct action, with the water utility company, to protect their aquifers through a mandated program of regulations developed by the state. (fn29)

      1021. Aquifer Protection as Zoning Regulation: Municipalities Without Large Public Service Wells

      In 1985 the state legislature adopted Public Act 85-279, requiring "reasonable consideration" for aquifer protection in municipal zoning regulations. (fn30) This statutory language remains primary authority for municipalities without public service wells, or with wells that serve fewer than 1,000 people, (fn31) to protect aquifers by means of zoning regulation; at least 49 such Connecticut municipalities have done so. (fn32) Municipalities which take this approach must incorporate into their zoning regulations reasonable consideration for the protection of aquifers located within their boundaries. (fn33) Administration is then accomplished through zoning procedures, either by the municipal zoning commission, if aquifer protection is incorporated into zoning regulations; (fn34) or through that agency and the inland wetlands agency designated by the municipality, if protection of the aquifer is designated to this board. (fn35)

      Even if a municipality has not adopted specific aquifer protection regulations, an inland wetlands commission may have the authority to preserve and protect "fragile and irreplaceable inland wetlands," with broad discretion over the regulation of land uses over aquifers. In 1991 in Dilozir v. Hebron Conservation Commission (fn36) the plaintiff-appellant had been denied permission to build a mini-warehouse on a wetland,

      103although he claimed the aquifer would be protected because the soil had "excellent draining qualities." (fn37) Since the town conservation commission in its administrative decision clearly defined the need to protect the aquifer, the court sustained the town's denial.

      The standards of reasonableness used by municipalities in the name of aquifer protection have been defined by judicial challenges, like those of Dilozir, primarily from developers who have been required to demonstrate protection of an aquifer in their plans. In the Town of East Lyme when the zoning commission rejected an application to reclassify a portion of property to a commercial zone and the developer appealed, (fn38) the court noted that the town's zoning regulations designated the location of aquifers and their recharge areas. (fn39) Determining that the regulations imposed controls in the interest of public health, safety and general welfare to preserve the quality and quantity of the Town's ground water resources (fn40) and that the Commission considered the potential negative impact on the aquifer plus evidence about past pollution in the area, the court had little difficulty supporting the Commission's denial. (fn41) In the process the court took the opportunity to affirm judicial hesitancy to reverse a municipal agency which lives close to the circumstances and conditions which create the problem and shape the solution. (fn42)

      Specific mention of groundwater resources in zoning regulations is important; without it, a town may not be supported if it hopes to regulate land use through aquifer protection. The Town of Berlin was stymied on this point in Tomasso v. Berlin Zoning Commission (fn43) when the commission denied permission to excavate from ten acres the plaintiff owned. Although the town claimed it was concerned that its aquifer would be

      104damaged, it had failed to incorporate any provisions relating to aquifer protection in its zoning regulations. In failing to identify clear...