Waitsfield Water Supply Source Permit ( 2009 )

Environmental Court of Vermont
State of Vermont
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E N T R Y R E G A R D I N G M O T I O N
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Waitsfield Water Supply Source Permit Docket No. 134-7-08 Vtec
Project: Waitsfield Water Supply Source Permit
Applicant: Town of Waitsfield
(Appeal from ANR Public Water Supply Source Permit)
Title: Motion for Relief from Stay (Filing No. 3)
Motion for Summary Judgment (Filing No. 4)
Filed: March 12, 2009
Filed By: Howland, Glenn C, Attorney for:
Appellee Town of Waitsfield
Response in Opposition filed on 04/14/09 by Cross-Appellant Jean R. Damon
Response in Opposition filed on 04/14/09 by Appellant Virginia Houston
_X_ Granted (as to both motions) ___ Denied ___ Other
On September 9, 2008, this Court issued an Entry Order staying the
proceedings in this appeal until “any final determination or dismissal in the
related Washington Superior Court proceedings.” That determination was
premised upon the limited understanding the Court had about the Public
Community Water System Source Permit (“Source Permit”) being appealed and the
rules and regulations that govern such water supply sources. The Court
therefore stayed these permit appeal proceedings until the conclusion of the
related land easement condemnation proceedings and clarification of the
regulations governing water supply source permitting. The Court noted at the
conclusion of its September 9, 2008 Entry Order that either the Town of
Waitsfield (“Town”) or the Vermont Agency of Natural Resources (“ANR”), as
parties to these proceedings, could seek reconsideration of the stay
determination, particularly after a clarification of the underlying
regulations. Id. at 2.
The related appeals from the condemnation proceedings remain pending
before the Washington Superior Court.1 Applicant Town has since filed a copy of
an appendices of the Vermont Water Supply Rules that govern the issuance of
permits for community water supply source wells, such as the proposed well at
issue in this appeal, together with a request that the Court lift the stay it
imposed on this appeal and the underlying permit and consider whether an entry
of summary judgment is appropriate in this permit appeal. For the reasons
stated below, we believe both of the Town’s requests are appropriate and
required as a matter of law, and therefore GRANT the Town’s requests.
The Source Permit at issue in this appeal was issued on June 24, 2008, by
the Water Supply Division of the Department of Environmental Conservation
1
See Houston v. Town of Waitsfield, No. 492-8-06 Wncv; Houston v. Town of Waitsfield, No. 147-3-08
Wncv; and Damon v. Town of Waitsfield, 157-3-08 Wncv. Our understanding is that these appeals may
have recently been consolidated.
In re Waitsfield Water Supply Source Permit, No. 134-7-08 Vtec (Mult Mots) Page 2 of 3
(“DEC”), which is a subdivision of ANR. The Source Permit details fourteen
separate Findings and Conditions, including Source Water Quality Results (#6);
Source Water Quantity (#7); Source Construction (#8); Source Interference with
Neighboring Wells (#9); and Source Protection Area (#10). None of these
regulatory compliance details are challenged in this appeal. In fact, in
reviewing all parties’ most recent filings, and the Statements of Questions
filed on behalf of both Appellant Virginia Houston and Cross-Appellant Jean R.
Damon, we find no Finding or Conclusion from the Source Permit which is
contested in this appeal proceeding. Rather, Appellant’s eight Questions and
Cross-Appellant’s three Questions focus on a single general issue: whether a
water supply source permit may be issued before the completion of separate
superior court proceedings challenging the condemnation of land within the well
head area or isolation zone.
When the DEC Water Supply Division first faced the complex legal issue of
“ownership and control” of the applicable lands, it followed the wise course of
completing its technical review of the application’s compliance with the
regulations governing public water supply wells. Some of those technical
compliance issues are listed above; all appear to be addressed in the Source
Permit; none of the applicable technical compliance issues appear to be
challenged in this appeal. When faced with the legal issue of “ownership and
control” of the applicable lands, the DEC Water Supply Division identified the
necessary isolation zone, pursuant to the regulations, and then placed
Condition 5(i) upon the permittee Town, requiring that ownership and control of
the specified area “shall be maintained for the duration of this Source’s use
as a Public Water Supply.” Id. We understand that Source Permit Condition
5(i) to require the Town to establish ownership and control of the specified
lands prior to and during the use and operation of the supply well.
The parties and this Court have referenced in prior filings the
undisputed limitations of this Court’s jurisdictional authority. We see no
need to recite those jurisdictional limitations again in this Entry order. Our
jurisdiction does not include the authority to adjudicate property disputes.
This Court is charged with the responsibility of administering “summary and
expedited proceedings consistent with a full and fair determination” of legal
issues within its jurisdiction. V.R.E.C.P. 1.
In the permit appeal now before us, we know of no legal issues that have
been challenged for which we have the jurisdictional authority to adjudicate.
We recognize that Appellant and Cross-Appellant have mounted sincere, serious
challenges in the Washington Superior Court to the condemnation of small
portions of their land for this project. The DEC Water Supply Division
acknowledged the same by the inclusion of Condition 5(i) in the Source Permit
it issued to the Town. Since no permit challenge over which we have
jurisdiction has been raised in this appeal, we are required as a matter of law
to remove the stay of these proceedings and the underlying permit, GRANT the
Town summary judgment, and AFFIRM Source Permit #BR01-0008, including all of
its applicable conditions.
The two year validity time period of Source Permit #BR01-0008 shall
commence from the date these proceedings become final. This completes the
proceedings before this Court concerning this appeal.
___________________________________________ __July 14, 2009__
Thomas S. Durkin, Judge Date
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In re Waitsfield Water Supply Source Permit, No. 134-7-08 Vtec (Mult Mots) Page 3 of 3
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Date copies sent: ____________ Clerk's Initials _______
Copies sent to:
Attorney Paul S. Gillies for Appellant Virginia Houston
Attorney Richard W. Darby for Cross-Appellant Jean R. Damon
Attorney Glenn C Howland for Appellee Town of Waitsfield
Attorney Judith L. Dillon for Interested Person Agency of Natural Resources
Attorney Mark L. Lucas for Natural Resources Board (FYI purposes only)