Town of Groton v. Agency of Natural Resources

Town of Groton v. Agency of Natural Resources  (2000-428); 172 Vt. 578;
772 A.2d 1103

[Filed 19-Apr-2001]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-428

                              MARCH TERM, 2001


Town of Groton	                     }	APPEALED FROM:
                                     }
                                     }
     v.	                             }	Caledonia Superior Court
                                     }	
Agency of Natural Resources	     }
                                     }	DOCKET NO. 44-2-99Cacv

                                        Trial Judge: Alan W. Cheever 

       In the above-entitled cause, the Clerk will enter:

       The Town of Groton appeals from the Caledonia Superior Court's review
  of the water  resources board's decision to deny the Town's application for
  a stream alteration permit it requested  in order to repair and replace a
  dam located on the Wells River within the Town.  The court upheld  the
  board's decision to deny the permit.  The Town claims that it was error to
  affirm the board's  decision because the board erred in (1) refusing to
  admit evidence presented by the Town regarding  its use of the water in the
  dam impoundment area for fire safety, and (2) in using the condition of the 
  river after the dam was washed out in 1998 as the baseline in its
  determination that granting the  permit would result in a change in the
  watercourse that would "significantly damage fish life."(FN1) 10 V.S.A.
  § 1023(a)(2).  We affirm.

       The dam in question was first erected in 1803 and has been repaired or
  replaced twice since.   In July 1996, the Town filed an incomplete stream
  alteration permit with the Agency of Natural  Resources to repair the dam. 
  See 10 V.S.A. § 1022.  In August of that year, the ANR requested that  the
  Town supplement its application to provide necessary information, but the
  Town was unable to  do so until February 1998 because the Town's
  representative handling the project had medical  problems.  In the
  meantime, however, in January 1998, the dam was destroyed by ice and high
  water.  Once the dam was destroyed, the fish habitat in the river improved,
  and species of trout and sculpin  again began to inhabit this portion of
  the Wells River.  This stretch of the river is now one of the  Wells
  River's few high quality habitats for sculpin, trout, and salmon.  

 

       Because the river system reverted to its natural state, and 10 V.S.A.
  § 1023 requires that any  permit be denied if the "proposed change" in the
  watercourse would "significantly damage fish life,"  the ANR denied the
  permit.  The Town appealed to the board under 10 V.S.A. § 1024(a), and the 
  board reviewed the permit application de novo, as required.  The board
  found that issuing the permit  would "significantly damage fish life," id.
  § 1023(a)(2), and thus determined that, under the factors  set out in 10
  V.S.A. § 1023, it had to deny the permit.  The Town subsequently appealed
  to the  superior court under 10 V.S.A. §1024(b), and the court affirmed the
  board's decision, ruling that  there was no error in excluding the fire
  safety evidence or in using the post-washout river conditions  as the
  baseline in its analysis.  The Town appeals and renews its previous
  arguments, but otherwise  does not challenge the findings of the board.  

       Our review of a board decision that is on appeal here after review in
  the superior court is the  same as that of the superior court: whether the
  board acted arbitrarily, unreasonably, or contrary to  law.  In re Town of
  Sherburne, 154 Vt. 596, 604, 581 A.2d 274, 278-79 (1990).  We look to see 
  whether the decision makes sense to a "reasonable person," id. at 605, 581 A.2d  at 279, and the  board has wide discretion in making its findings and
  conclusions as long as they are not inconsistent  with legislative and
  agency policy, see id.; accord In re Wal*Mart Stores, Inc., 167 Vt. 75, 79,
  702 A.2d 397, 400 (1997).  

       At the hearing before the board, the Town offered evidence that the
  water contained in the  impoundment area prior to the dam's destruction was
  used for Town fire safety, and that it would  continue to use the water in
  this manner once the dam was rebuilt.  The Town urges us to accept its 
  argument that the board erred in not admitting this evidence because it had
  a duty to consider, as a  factor, those things that relate to the general
  public interest and welfare in deciding whether or not to  grant the
  permit.  We see no error in the board's refusal to consider this evidence
  because the plain  language of 10 V.S.A. § 1023 sets out specific factors,
  and if any one of them is not met, the permit  is to be denied.  See In re
  Handy, ___Vt. ___, ___, 764 A.2d 1226, 1232-33 (2000) (where a statute  is
  unambiguous, we rely on the plain and ordinary meaning of the words chosen
  to determine  legislative intent); Merkel v. Nationwide Ins. Co., 166 Vt.
  311, 314, 693 A.2d 706, 707 (1997)  (principal objective of statutory
  construction is to discern the legislative intent).  Indeed, we do not  see
  how the board could consider evidence outside of the clearly delineated
  factors of § 1023.  See  10 V.S.A. § 905 ("board shall take such actions as
  they are authorized by statutes in the management  of the water resources
  of the state"); Vincent v. Vermont State Retirement Bd., 148 Vt. 531, 535,
  536 A.2d 925, 928 (1987) ("'agency must operate for the purposes and
  within the bounds authorized by  its enabling legislation'") (quoting In re
  Agency of Administration, State Buildings Division, 141 Vt.  68, 75, 444 A.2d 1349, 1352 (1982)).  

       The Town next argues that it was error for the board to use the
  condition of the river after the  dam had washed out as its baseline for
  comparison.  At the hearing, the ANR urged the board to use  the river's
  actual present state as the baseline, and the Town urged the board to use
  the historical  conditions of the river when the dam was in place.  This
  distinction is important because, under the  statute, it is the "proposed
  change" to the watercourse that has to be analyzed.  10 V.S.A. § 1023(a).  
  The argument between ANR and the Town boils down to a dispute over whether
  to compare the  proposed conditions to (a) the conditions present with the
  old dam in place (the Town's position); or  (b) the current conditions with
  no dam (the ANR position).  The extent of the proposed change will  vary
  widely depending upon the approach adopted.  Specifically, if the baseline
  is the river as 


 

  it exists in its natural state without the dam, then permitting the dam to
  go forward will "significantly  damage fish life," id. § 1023(a)(2),
  because the fish have recovered since the dam's washout in  January 1998,
  and the placement of the dam will destroy this recovered habitat.  

       The Town argues that the board's prior dam restoration decisions
  support the Town's position  because, in these prior decisions, the board
  used as a baseline the river condition as it was with the  dam in place. 
  See, e.g., In re Passumpsic Hydroelectric Project, No. WQ 94-09, Memorandum
  of  Decision (Vt. Water Res. Bd. Aug. 15, 1995); In re Lamoille River
  Hydroelectric Project, Nos. WQ  94-03, WQ 94-05, Memorandum of Decision
  (Vt. Water Res. Bd. Aug. 15, 1995).  In these cases,  however, the dams
  were in existence, and there was no evidence to show the pre-dam state of
  the  stream.  Here, on the other hand, the dam was gone and the stream was
  in its natural state when the  Town completed its application to ANR and
  when it filed its de novo appeal with the board.  The  Town in this case
  was unable to clearly show the condition of the river as to fish habitat
  when the  dam was in place.  Thus the board, consistent with these prior
  decisions, refused to engage in  speculation and looked to the stream's
  actual condition in establishing a baseline by which to  measure the
  effects of the proposed change in the watercourse. 

       We reiterate that we are acting under a limited standard of review. 
  The board's approach was  fully consistent with its earlier decisions.  It
  was not arbitrary, unreasonable or contrary to law.  

       Affirmed.  



BY THE COURT:



_______________________________________
Jeffrey L. Amestoy, Chief Justice

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
James L. Morse, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  In its reply brief, the Town argued that the board decision did
  not properly protect its riparian  rights.  During oral argument it
  conceded, however, that its riparian rights, whatever they may be, are not 
  relevant to the decision under the statute, 10 V.S.A. § 1023(a)(3).  The
  statute requires the board to find  that the granting of a permit will not
  significantly damage riparian rights.  The Town argues that the  denial of
  the permit damages its riparian rights.  Because the argument was not
  raised below and is not  consistent with the statute, we decline to
  consider it further.