The Honorable Robert J. Klee
AGO 2017-4
No. 2017-4
Connecticut Attorney General Opinions
Office of the Attorney General State of Connecticut
May 8, 2017
The
Honorable Robert J. Klee
Commissioner
State
of Connecticut
Department
of Energy and Environmental Protection
79 Elm
Street
Hartford,
CT 06106
Dear
Commissioner Klee:
You
have asked my office for an opinion identifying the owner of
a structure commonly known as the Stonington Harbor
Breakwater, which is located in the Stonington Harbor
adjacent to Stonington, Connecticut (the
"Breakwater"). You also seek an opinion to identify
the owner of the lands upon which the Breakwater rests.
Determining the answers to these questions will facilitate
the preservation and maintenance of the Breakwater.
We
conclude that the State of Connecticut is the owner of the
Breakwater and the lands on which it rests. We further
conclude that the Department of Energy and Environmental
Protection ("DEEP") is responsible for regulating
the maintenance of the Breakwater.
I.
Background.
A
letter and accompanying report from the Secretary of War to
the U.S. House of Representatives dated February 28, 1828
(attached to this opinion as Exhibit A) indicates that the
Breakwater was constructed by the federal government for the
protection of the Stonington Harbor, and vessels traveling or
moored within the harbor, from potential damage caused by
ocean currents. The construction of the Breakwater was
originally authorized by the Act of May 23, 1828 (4 Stat.
288, chapter 73). See Section 1313 of the Federal Water
Infrastructure Improvements for the Nation Act, Public Law
No. 114-322 (attached to this opinion as Exhibit B).
A
letter dated October 21, 2014 from the Department of the Army
(the "Department") to United States Senator Richard
Blumenthal (attached to this opinion as Exhibit C), states
that the Breakwater was constructed by the U.S. Army Corps of
Engineers during the time period from 1828 to 1832. The
letter further states that the Breakwater was subsequently
abandoned pursuant to the Rivers and Harbors Act of 1950.
Despite this, the Department believed it prudent that the
Breakwater be specifically deauthorized by the U.S. Congress.
It was the Department's opinion that once the Breakwater
was so deauthorized, it would be up to the State of
Connecticut (the "State") to determine the
ownership of the Breakwater based on the application of
appropriate state law.
Section
1313 of the Federal Water Infrastructure Improvements for the
Nation Act deauthorized the Breakwater as a Federal project
as of December 16, 2016, the effective date of the Act. See
Exhibit B. Because the Breakwater has been deauthorized by
the federal government, the question of its...
