Beyers v. Water Resources Board
Annotate this Case
Beyers v. Water Resources Board (2005-400); 180 Vt. 605; 910 A.2d 810
2006 VT 65
[Filed 31-Jul-2006]
[Motion for Reargument Denied 12-Sep-2006]
ENTRY ORDER
2006 VT 65
SUPREME COURT DOCKET NO. 2005-400
MARCH TERM, 2006
Robert Beyers } APPEALED FROM:
}
}
v. } Washington Superior Court
}
Water Resources Board }
} DOCKET NO. 351-6-03 Wncv
Trial Judge: Matthew I. Katz
In the above-entitled cause, the Clerk will enter:
¶ 1. Plaintiff appeals from a superior court order denying his
challenge to a Water Resources Board rule regulating public use of
Chittenden Reservoir. The challenged portion of the rule imposes a
five-mile-per-hour speed limit on motorboats and prohibits waterskiing.
(FN1) Plaintiff, a riparian landowner, opposes the new restrictions and
argues that the Board failed to follow its own statutory and regulatory
guidelines when promulgating the rule. We affirm the Board's decision.
I.
Factual Background
¶ 2. The Board made the following findings in its written
decision. Chittenden Reservoir is located within the Green Mountain
National Forest in a relatively remote area of Rutland County. The surface
area of the reservoir is approximately 702 acres, and the shoreline is
largely forested and undeveloped except for approximately ten camps along
the western shore. The reservoir is surrounded by mountains, and those on
the northeast rise 2,000 feet above the surface water elevation. The clean
and clear waters of the reservoir are free from aquatic nuisances and
support a fishery that includes yellow perch, largemouth bass, brown trout,
and walleye. Numerous bird species rely upon the reservoir for habitat,
including loon, osprey, bald eagle, great blue heron, and merganser. The
reservoir also provides habitat for mammals, including deer, otter, moose,
mink, and beaver. In the words of the Board, the reservoir "provides
opportunities for a wilderness-like recreational experience to a degree
that is increasingly uncommon in Vermont."
¶ 3. Central Vermont Public Service (CVPS) manages the reservoir
as part of a hydroelectric generation system. Between May and October,
CVPS periodically releases water from the impoundment system in order to
accommodate energy demands and weather changes. These "drawdowns" occur
relatively quickly and can alter the water level by as much as five feet.
The water level fluctuations result in exposure of a number of
otherwise-submerged stumps and rocks.
¶ 4. CVPS also owns the only public boat access to the reservoir.
Prior to 1987, CVPS leased this access to the Vermont Department of Fish
and Wildlife (DFW), which imposed no restrictions upon use of the boat
access or reservoir beyond those applicable to all public waters. Both
parties agree that the recreational uses of the reservoir during this
period included fishing, canoeing, kayaking, wildlife observation,
swimming, quiet enjoyment, and motorboating with small motors. Some
riparian landowners also used the reservoir for waterskiing and high-speed
motorboating. In 1989, however, CVPS began directly managing the boat
access and posted a sign stating that use of the access ramp was restricted
to boats with motors of less than fifteen horsepower. This horsepower
limitation also served as a de facto prohibition on waterskiing. In 1997,
CVPS returned management of the boat access to DFW, which removed the
restrictions.
¶ 5. In 2002, a group of Rutland County residents petitioned the
Board under 10 V.S.A. § 1424(e) for new rules for the reservoir, including:
(1) a five-mile-per-hour speed limit on motorboats; (2) a prohibition
against personal watercraft (jet skis); and (3) a prohibition on
waterskiing. Petitioners cited concerns about use conflicts between
motorboating and quiet enjoyment, safety risks presented by submerged
hazards, threats to loon recovery and aquatic nuisance management, and the
potential loss of a uniquely wilderness-like recreational opportunity in
the central region of the State.
¶ 6. The Board noticed the proposed rule, invited public comment,
and held two public hearings, which generated various concerns. Some
residents expressed concern that more intense high-speed motorboating would
change the atmosphere of the reservoir, along with other concerns about
motorboat safety and environmental and wildlife issues. For example, a
biologist from the Vermont Loon Recovery Project wrote to express his
opinion that high-speed motorboating subjected loons to stress sufficient
to inhibit their recovery. Other citizens, however, opposed any new
regulation of the reservoir and suggested that the current rules were
adequate. Plaintiff, whose family has enjoyed waterskiing on the reservoir
for decades, was among this latter group.
¶ 7. On August 30, 2002, the Board issued a written decision
adopting the proposed regulations. Central to the Board's decision were
its conclusions that the reservoir supports a uniquely wilderness-like
recreational experience and that high-speed motorboating and waterskiing
presented "an unacceptable risk to public safety." The Board also noted
that other nearby water bodies provided waterskiing opportunities,
including Lakes Bomoseen, Dunmore, and St. Catherine, and reasoned that its
duty to provide an appropriate mix of recreational opportunities justified
protection of the reservoir's uniquely wilderness-like nature.
¶ 8. In June 2003, plaintiff filed a complaint in Washington
Superior Court seeking invalidation of the rule. The superior court
rejected plaintiff's arguments and held that issuance of the rule was
within the Board's authority to regulate the use of public waters.
Plaintiff now appeals.
II.
Statutory and Regulatory Background
¶ 9. The Legislature authorized the Board to make rules regarding
the use of public waters in order to "further the maintenance of safe and
healthful conditions" and "provide for multiple use of the waters in a
manner to provide for the best interests of the citizens of the state." 10
V.S.A. § 1421. The Board must attempt to manage multiple and conflicting
uses "so that the various uses may be enjoyed in a reasonable manner . . .
. To the extent possible, the board shall provide for all normal uses."
Id. § 1424(c). The statutes authorize the Board to regulate use conflicts
by promulgating time, place, and manner restrictions on certain uses,
including limits on "the size of motors allowed, size of boats allowed,
allowable speeds for boats, and prohibiting the use of motors or
houseboats." Id. § 1424(a) (emphasis added). When imposing one of the
above restrictions, the Board must consider:
the size and flow of the navigable waters, the predominant use of
adjacent lands, the depth of the water, the predominant use of the
waters prior to regulation, the uses for which the water is
adaptable, the availability of fishing, boating and bathing
facilities, [and] the scenic beauty and recreational uses of the
area.
Id. § 1424(b).
¶ 10. The applicable regulations are the Vermont Use of Public
Waters Rules (VUPWR), which "provide[] a basis for both avoiding where
possible, and resolving when necessary, conflicts in the use of public
waters." VUPWR § 1.1, 6 Code of Vermont Rules 12 004 059-1 (Mar. 2006).
The underlying goals of the VUPWR are to "consider[] the best interests of
both current and future generations of the citizens of the state and
insur[e] that natural resource values of the public waters are fully
protected." Id.
¶ 11. When deciding petitions for rulemaking filed under 10 V.S.A.
§ 1424(e), the Board must consider the statutory factors enumerated by §
1424(b), plus "the safety and best interests of . . . citizens of the state
and the need to provide an appropriate mix of water-based recreational
opportunities on a regional and statewide basis." VUPWR § 2.2. The VUPWR
also require use conflicts to be resolved "using the least restrictive
approach practicable that adequately addresses the conflict." Id. § 2.7.
When a use conflict involves the operation of motorboats, "priority will be
given to managing the manner in which vessels are used or operated, such as
by imposing speed limits." Id. § 2.9. Furthermore, "[t]hose water bodies
which currently provide wilderness-like recreational experiences shall be
managed to protect and enhance the continued availability of such
experiences." Id. § 2.11. The Board must implement these broad policy
goals on a statewide level, with an understanding that problems may
"require solutions tailored to the unique circumstances of particular
bodies of water." Id. § 1.1. We review the Board's decision in light of
these statutory and regulatory goals.
III.
Legal Analysis
¶ 12. We review the Board's rulemaking decisions to determine
whether they are arbitrary, unreasonable, or contrary to law. In re Town
of Sherburne, 154 Vt. 596, 604, 581 A.2d 274, 278-79 (1990). Our review is
" 'based solely upon the record of the proceedings before the board.' "
Id. at 603, 581 A.2d at 278 (quoting 10 V.S.A. § 1270). We review the
record to satisfy ourselves that the findings are supported, but we do not
re-weigh conflicting facts or substitute our judgment for that of the
Board. Id. at 605-06, 581 A.2d at 279-80. Thus, "[e]ven if the record of
the Board's proceedings contains conflicting evidence, the Board's finding
on the issue will ordinarily be upheld." Id. at 605, 581 A.2d at 279. An
administrative decisionmaker like the Board must also "articulate a
satisfactory explanation for its action including a rational connection
between the facts found and the choice made," but even an explanation of
less-than-ideal clarity will be upheld so long as the agency's path may be
reasonably discerned. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983) (quotations omitted).
¶ 13. Plaintiff first challenges the Board's conclusion that
waterskiing and high-speed motorboating presented an unacceptable safety
risk. Our review of the record reveals that significant concerns about
submerged rocks, stumps, and other hazards were raised both during the
public hearing and in written comments. Plaintiff acknowledges these
hazards but maintains that the Board improperly weighed this "small, but
finite risk" against evidence that no serious waterskiing accident has
occurred in recent memory. His argument misses the mark, however, because
the Board is authorized to promote safety and determine appropriate levels
of risk by both 10 V.S.A. § 1421 (expressing a policy of promoting public
safety) and VUPWR § 2.2 (requiring the Board to consider safety risks).
Furthermore, the Board's determination was intended to avoid future harm.
Having found that a safety risk existed, the Board was not required to wait
for actual death or serious injury to occur before promulgating the rule.
¶ 14. Plaintiff next observes that the record contains evidence
that several long-distance swimmers have experienced accidents on the
reservoir. He argues that it is therefore arbitrary for the Board to
regulate waterskiing and motorboating-activities with no past accidents
associated with them-based on potential future harm, while not regulating
long-distance swimming, an activity that has led to accidents in the past.
This argument fails for two reasons. First, the petition presented to the
Board did not propose regulation of long-distance swimming, and thus the
issue was not before the Board. Second, the Board's decision was based not
only upon safety concerns, but also upon a finding that high-speed
motorboating and waterskiing conflict with other quiet uses of the
reservoir and compromise its general wilderness-like atmosphere. Quiet
uses such as swimming, on the other hand, "are compatible with and enhanced
by the wilderness-like environment that the Reservoir currently provides."
The Board thus adequately explained its reason for regulating motorboating
and waterskiing differently from other uses.
¶ 15. Plaintiff argues that the decision was contrary to law
because the Board failed to impose "the least restrictive approach
practicable that adequately addresses the conflicts." VUPWR § 2.7.
Plaintiff asserts that the least restrictive regulation would be "a
combination of common sense and common courtesy, along with the generally
applicable boating rules." We note, however, that the status quo is always
less restrictive than new regulations. Plaintiff also imagines
alternatives including an exemption from the rule for shoreline landowners,
time and place restrictions (such as prohibiting waterskiing only on
weekends between 10:00 a.m. and 6:00 p.m.), and use-frequency restrictions
(such as allowing no more than four boats to operate at high speeds at any
one time). These proposals fail, however, because the Board found all
waterskiing and high-speed motorboating to be incompatible with the
preservation of the wilderness-like atmosphere currently provided by
Chittenden Reservoir. As such, we find no error in the Board's conclusion
that no lesser regulation would adequately address the conflicts.
¶ 16. Plaintiff also argues that petitioners did not adequately
explain why the proposed regulations were the least restrictive necessary.
See VUPWR § 3.7 ("The petitioner shall have the burden of persuasion that
the requested exceptions or modifications are consistent with the policies
in Section 2 and applicable statutory requirements."). The petition,
however, was accompanied by a statement that detailed petitioners' concerns
regarding issues of safety, threats to wildlife, and aesthetics. Given the
Board's findings regarding the incompatibility of waterskiing and
high-speed motorboating with safety and preservation of the reservoir's
wilderness-like recreational experience, we hold that petitioners'
statement was adequate.
¶ 17. Plaintiff asserts that the Board's decision was contrary to
law because the Board failed to follow 10 V.S.A. § 1424(c) and VUPWR § 2.6,
which encourage resolution of conflicts in a manner that provides for
normal uses to the extent possible. Plaintiff argues that the Board erred
by not finding waterskiing and high-speed motorboating to be normal uses of
the reservoir. Even if plaintiff were correct, however, no different
result would be mandated in this case because the Board expressly found
that continued waterskiing and high-speed motorboating is incompatible with
the wilderness-like recreational experience provided by the reservoir. We
thus find no error.
¶ 18. Finally, plaintiff argues that the Board's rule was arbitrary
because the Board has regulated other public waters differently in the
past. Plaintiff goes to great lengths to compare the Board's treatment of
Chittenden Reservoir with other bodies of water. The Board explained,
however, that the reservoir is unique because there is a lack of
wilderness-like recreational experiences in the central region of Vermont.
See VUPWR § 1.1 (explaining that some management issues "require solutions
tailored to the unique circumstances of particular bodies of water"). This
justification adequately explains the choice made. See id. § 2.11 ("Those
water bodies which currently provide wilderness-like recreational
experiences shall be managed to protect and enhance the continued
availability of such experiences.").
¶ 19. The real thrust of plaintiff's arguments is that the Board
should have made a different decision than it did. But it is not the role
of the Court to determine whether the Board made the correct policy
decision. Our role is only to determine whether the Board acted within the
scope of its authority, made findings supported by the evidence, and
articulated a rational explanation for its position. We hold that it did.
Affirmed.
BY THE COURT:
_________________________________________
John A. Dooley, Associate Justice
_________________________________________
Denise R. Johnson, Associate Justice
_________________________________________
Marilyn S. Skoglund, Associate Justice
_________________________________________
Brian L. Burgess, Associate Justice
_________________________________________
John P. Wesley, Superior Judge,
Specially Assigned
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Footnotes
FN1. Plaintiff does not challenge the rule's prohibition against the use of
personal watercraft (jet skis) on the reservoir.
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