Killington Ltd., Docket No. WQC-97-10 (Appeal of DEC's issuance of Section 401 Water Quality Certificate), Memorandum of Decision on the Scope of Review and the Other Appropriate Requirements of State Law (Mar. 30, 1998) State of Vermont WATER RESOURCES BOARD MEMORANDUM OF DECISION ON THE SCOPE OF REVIEW AND THE OTHER APPROPRIATE REQUIREMENTS OF STATE LAW RE: Killington Ltd. Docket No. WQC-97-10 Killington Road (Appeal of DEC's issuance of 401 Killington, Vermont 05751 Water Quality Certificate) I. BACKGROUND The Water Resources Board ("Board") received a notice of appeal filed on December 5, 1997 by Nicholas J. Lenge, Joseph E. Calabrese, Thomas J. Calabrese, and Lucas Krupywnckuj ("Appellants") seeking review of a decision by the Department of Environmental Conservation ("DEC"), Agency of Natural Resources ("ANR"), granting to Killington Ltd. ("Killington") a 401 Water Quality Certification ("Certification") in conjunction with Killington's Woodward Reservoir Snowmaking Expansion ("Woodward Project") and its Killington/Pico Interconnect Project ("Interconnect Project"), referred to collectively as the "Project". A prehearing conference was convened on January 22, 1998. At the prehearing conference, all persons or entities which had prepared party standing requests submitted those to the Board. In addition, certain parties who chose to intervene as of right participated in the prehearing conference and submitted their entries of appearance on or before the date of the prehearing. Board Chair Davies issued Rulings on Party Standing on February 23, 1998. On that same date, Chair Davies granted Appellants Request to Consolidate the above-captioned hearings for the purposes of achieving a uniform prefiling schedule and for a combined presentation of evidence. Killington's proposed Project has implicated several regulatory programs and has required a number of permits - components of which include assessments of water quality. Moreover, the Project has prompted memoranda of understanding between Killington and the ANR on several issues which, absent such agreements, might have the potential to result in degradation of environmental quality generally, and water quality in particular. The proposed Project has also triggered specific legislative approval for the exchange of 1,050 acres of land owned or controlled by the State of Vermont in the Calvin Coolidge State Forest in Sherburne for 2,948 acres of land owned or controlled by Killington in the towns of Sherburne and Mendon. The lands conveyed by the State to Killington are presumably necessary to the construction of Killington's Project. The legislation was crafted with consideration of certain water storage and snowmaking issues in mind. It states specifically that, "The power of the commissioner of forests, parks, and recreation to enter into the land exchange authorized by 1 of this act is contingent on the execution of an agreement between Farm and Wilderness Corp. and Killington, Ltd. to secure water storage capacity from Woodward Reservoir for the purpose of snowmaking by Killington, Ltd." (2 Execution of Agreement, Act 21 of the 1997 Legislative Session, effective May 6, 1997). The specific regulatory processes administered by the ANR, the District Environmental Commission, or the Environmental Board with which Killington's project must comply and that are in some way related to water quality are as follows: (1) Chapter 16 of the Environmental Protection Rules, Water Withdrawals for Snowmaking ("Snowmaking Rules") and the attendant requirement to consider and analyze snowmaking alternatives ("Alternatives Analysis"); (2) 29 V.S.A.  401-409 the Management of Lakes and Ponds or shoreland "encroachment permit" statute; (3) 10 V.S.A. Chapter 37 and particularly 905b(18) and the Vermont Wetland Rules ("Conditional Use Determination" or "CUD"); 10 V.S.A. 6001-6092 ("Act 250"). In addition to these state permits and regulatory processes, the proposed Project will cause impacts to certain wetlands which, as waters of the United States, are subject to the U.S. Army Corps of Engineers ("Corps") jurisdiction. In particular the dredging and/or filling of these waters requires a Corps permit pursuant to 33 U.S.C. 1344 (404 Permit) and the corresponding federal regulations codified at 33 CFR Parts 320 through 330. It is the 404 Permit which triggers Killington's requirement to secure a 401 Certification (See 33 U.S.C. 1341). As explained in the parties' filings, Killington submitted a consolidated application for both components of the Project to the Corps. ANR, therefore, issued a single certification. The appeal was timely filed pursuant to 10 V.S.A. 1024. As a consequence of the timely appeal, the DEC's action relative to this matter is stayed as a matter of law pending the Board's determination with respect to the Certification request. II. PRELIMINARY ISSUES IN WQC-97-10 There are three preliminary issues which pertain to the 401 Appeal that will be addressed in this Memorandum of Decision: Standard of Review and Scope of Review; Other Appropriate Requirements of State Law; and Party Standing. These issues have been briefed and were the subject of oral argument on March 10, 1998. A. STANDARD OF REVIEW AND SCOPE OF REVIEW 10 V.S.A. 1004 provides that the ANR "shall be the certifying agency of the state for purposes of 401 of the federal Clean Water Act and the secretary's determination on these certifications shall be final action by the secretary appealable to the water resources board." In an appeal of ANR's issuance or denial of a 401 Water Quality Certification, the standard of review is de novo. In the context of de novo review, an administrative board sitting in its quasi-judicial capacity must hear the case before it "as though no action whatever had been held prior thereto." See In re Poole, 136 Vt. 242 (1978). As a general proposition, the only issues to which the de novo review standard applies are those which are properly before the quasi-judicial body. Accordingly, the Board will not revisit matters that are not within the scope of review. In a factually similar case involving Killington's efforts to obtain an Act 250 permit for the expansion of snowmaking resources, the Vermont Supreme Court in affirming the Environmental Board's decision to deny the permit, discussed the tensions inherent in an appeal process based on the principle of de novo review. See In Re Killington Ltd., 159 Vt. 206, 215 (1992). In that case, the Court noted that the Environmental Board "was required to make affirmative findings on all Act 250 criteria before it." 159 Vt. at 214 (emphasis added). In Killington, the de novo appeal only pertained to the District Environmental Commission's findings and conclusions under Criterion 8(A) because only that criterion was raised in the notice of appeal. In the absence of an enumerated list of criteria, the Board here looks to appropriately define the scope of review in this 401 water quality certification appeal by carefully reviewing the Appellants' Notice of Appeal, and by considering the parties' timely filings relating to the scope of review. In defining the appropriate scope of review in this appeal the Board first looks to the statements of alleged error in the Appellants' Notice of Appeal. The Board looks to the general nature of the allegations in the Notice of Appeal rather than strictly scrutinizing the language. The specific provision authorizing an appeal of a 401 Certification is set forth at 10 V.S.A. 1024 and provides that "any person aggrieved by the decision . . . under . . .section 1004 . . . may file an appeal with the board within fifteen days of issuance of notice of the secretary's action." No other guidance as to the specific requirements of any notice of appeal under 1004 are provided in 10 V.S.A. 1024. Where the issues on appeal are discretely framed, as in the Killington case cited above, the scope of the reviewing tribunal's review is more easily defined. Farm and Wilderness cites another case to support this proposition. In Village of Woodstock v. Bahramian, 160 Vt. 417 (1993), the Court held that the superior court, in its review of a Woodstock Planing Commission decision, had no authority to revisit the entire Commission decision because only those proposed building design alterations that were denied had been appealed. Bahramian is instructive on the Board's treatment of a notice of appeal - particularly when it is specific. However, the Board also recognizes that in the context of a de novo review the notice of appeal is not necessarily a limiting document which precludes the inclusion of related issues not specifically identified in the notice of appeal. See for example City of Barre v. Town of Orange, 138 Vt. 484 (1980) citing Town of Lyndon v. Burnett's Contracting Co. 138 Vt. 102, 108 (1980) The language of the Notice of Appeal in this appeal is, at times, imprecise. In addition, the potential scope of 401 review is very broad. In this appeal, therefore, defining the scope of review is more difficult than in the cases cited above. To clarify the issues on appeal, the Board, while conforming with Board Rules of Procedure 24(A)(1) and 18(D), must "be free to make common-sense rulings within the general scope of the notice of appeal." In Re Killington Ltd., 159 Vt. at 215. The Board will extend some latitude in interpreting Appellants' allegations of error in order to more clearly frame the issues. However, we decline to allow the unchecked flexibility to raise new issues advocated by Appellants' Memorandum of the Issues wherein they claim that the Memorandum "is not intended to be a complete and comprehensive discussion of all the relevant issues present in this appeal," and that "Appellants reserve the right to bring to the Board for review any other relevant issues, once identified, that fall within its jurisdiction and which have a direct bearing on this appeal." See footnote 1 of February 13, 1998 Memorandum of the Issues. Rulings on the scope of appeal are necessary in the early stages of an appeal to inform all parties of what the issues are so that evidence may be submitted accordingly. In order to assist in that effort, the Board has sought and reviewed filings from each of the parties, all of which have attempted to frame the scope of issues under review and to determine the appropriate requirements of state law that should be considered in this case. 1. Appellants' Notice of Appeal We begin with a paraphrased statement of the allegations of error in the Appellants' Notice of Appeal: a. The Certification violates water quality policy set forth at 10 V.S.A. 1250 1. Specifically, subparagraph 6 which states that it is the policy of Vermont to: "protect from risk and preserve in their natural state certain high quality waters, including fragile high-altitude waters, and the ecosystems they sustain." b. The Certification violates 3-02 and 3-03 of the VWQS for Class A and Class B waters. c. There has been no demonstration that adverse effects of the Project have been minimized such that only a limited reduction in water quality is being allowed pursuant to the Anti-degradation policy set forth at 1-03 of the VWQS. d. The Project will not result in the maintenance and protection of all existing water quality standards for Woodward Reservoir and the affected brooks and streams contrary to the provisions of 1-03 of the VWQS. e. The Applicant provided an inadequate review of water conservation measures, water use efficiency and ground water alternatives. f. The Applicant has failed to adequately consider feasible and reasonable alternatives to the Woodward Reservoir drawdown and its effect on Reservoir Brook, and other brooks, as required by 16-05 of the Environmental Protection Rules concerning Water Withdrawals for Snowmaking. g. The Certification violates the provisions of Water Quality Criteria 3-01 of the VWQS for aquatic habitat (the Board reads this provision to be inclusive of all general criteria listed in 3-01 except 3-01 B.3.c and 3-01 B.10.b although it expects that certain other sections of the general criteria will not be in issue (e.g. 3-01 B.11 and B.10.a, c and d)). h. The water drawdown (of Woodward Reservoir) will affect ice thickness and may result in dangerous ice conditions adversely impacting on recreational uses, and aesthetics. i. The following allegation of error is not clear on its face. In the Notice of Appeal it reads: "The permit analysis was incomplete on the effects of the change of dissolved oxygen on aquatic biota related to the downstream." j. The altered drawdown regime of Woodward Reservoir will change the ice formation process and may result in adverse effects to the Class Two wetlands in general as defined in 4.1(b) of the Vermont Wetland Rules ("VWR") and specifically to the peat mat, functions of hyrdophytic vegetation habitat, fish, amphibians, wildlife, and migratory bird habitat. k. The Project and ice conditions will result in an undue adverse effect on existing and beneficial values contrary to 2-02 of the VWQS. l. The Project may result in an adverse effect on the aquatic vista, the physical and chemical nature of the substrate and the species composition, and propagation of fish as described in 3.01(B)(5) of the VWQS. m. The construction of intake and pipeline and winter water drawdown may result in undue erosion and sedimentation at the Woodward Reservoir. n. The Project will cause undue adverse effects to existing shoreline structures and other improvements. o. The Project and diversion will significantly damage the rights of riparian owners along all brooks and streams involved. p. The Applicant has failed to prepare a sufficient water level management plan to assure the protection of smelt spawning and protection of resident fish from predators in the Woodward Reservoir and streams. q. Construction of the Interconnect will result in undue erosion and transport of sediment to the brook involved and the Applicant has failed to prove that the biological community will not experience adverse impacts due to a degradation of the Class A waters. r. The Project and mechanical devises will result in a diminution of value of properties adjacent to Woodward Reservoir and Reservoir Brook. s. The Applicant failed to submit an evaluation of the habitat function of wetlands impacted by the Interconnect prior to issuance of the Certificate. t. The Applicant has not submitted an approved monitoring plan and [has not] developed adequate safety devises to determine permit compliance. u. The DEC violated its duty under the public trust doctrine by not including a public trust analysis of the fisheries and recreational uses in rendering its permit. v. The Water Quality Certificate Application is incomplete due to lack of final designs of all intakes, pipeline crossings and the interconnect trail and road stream crossings. 2. Five Categories of Issues Generally, the Board will treat each of the allegations of error as falling within one of five categories. Those identified below at (1), (2) and (3) will not be included within the scope of review; those identified at (4) will be included; and those identified at (5) will only be included to the extent that they involve Woodward Reservoir, Reservoir Brook, Madden Brook, or Falls Brook (hereinafter referred to as "Woodward Reservoir and Associated Waterbodies"). The term Associated Waterbodies, used herein, is intended to reflect that these above-named brooks are related to Woodward Reservoir either by virtue of their proximity to the Reservoir or their hydrological nexus. Also, the Board finds that these waters have been sufficiently described as waters in which the Appellants have demonstrated a substantial interest. Such interest is derived from either the connection of the Associated Waterbodies to Woodward Reservoir or because Appellants have set forth an independent interest in these waterbodies which can be called a substantial interest. The term "associated waterbodies" is not intended to definitively identify all waters which are hydrologically related to Woodward Reservoir, as that list may be more inclusive. Rather, based on the Appellants' Petition for Party Standing, the Notice of Appeal, and the parties' subsequent filings, such definition guides the Board's limitation of the scope of review to those waters in which Appellants have demonstrated a substantial interest. (1) The following issue listed in the Appellants' Notice of Appeal is beyond the scope of the Board's authority and will not be considered. (r) The Project and mechanical devises will result in a diminution of value of properties adjacent to Woodward Reservoir and Reservoir Brook. The Board does not adjudicate private property values and has no discretion to include this allegation of error within the scope of review. Accordingly, the Board declines to address the issue. (2) The following issues related to the impacts of encroachments upon shoreline issues and riparian rights and the evaluation of public trust issues may, under certain circumstances, be appropriate for review within the context of 401 Certification appeal. In this case, however, the following issues will not be included: (n) The Project will cause undue adverse effects to existing shoreline structures and other improvements. (o) The Project and diversion will significantly damage the rights of riparian owners along all brooks and streams involved. (u) The DEC violated its duty under the public trust doctrine by not including a public trust analysis of the fisheries and recreational uses in rendering its permit. The above issues are before this Board in a different appeal (MLP-97-09) which involves the same Appellants seeking de novo review under 29 V.S.A. 401-410 relative to Killington's proposed Project. To the extent that concerns reflect the beneficial uses and values sought to be protected by the VWQS, they are addressed under subparagraph (4). Otherwise, these issues relate to concerns addressed in the public good/public trust analysis which will be conducted by the Board in the context of MLP-97-09. See Memoranda of Decision relative to MLP-97-09 dated February 10, 1998 and March 20, 1998. Addressing the preceding issues, (n), (o), and (u) in this proceeding would be duplicative and a waste of resources. (3) The issuance of Conditional Use Determination #95-405 on November 21, 1997 has been subject to a full and fair litigation, including opportunity for public comment, and the outcome of that litigation has not been appealed. The Board declines to allow Appellants in the context of this 401 certification appeal an opportunity to collaterally attack the CUD. Allowing such would require Killington to re-litigate in this 401 review the question the Woodward Project's impacts upon a Class Two wetland which is included in and adjacent to the northeast edge of Woodward Reservoir ("Class Two Floating Peatland"). The Class Two Floating Peatland is represented on Vermont Significant Wetland Inventory ("VSWI") Map #26D and described as an "open water and a saturated broad-leaved evergreen scrub-shrub palustrine wetland." The Appellants stated the issue in the following manner: (j) The altered drawdown regime of Woodward Reservoir will change the ice formation process and may result in adverse effects to the Class Two wetlands in general as defined in 4.1(b) of the Vermont Wetland Rules ("VWRs") and specifically to the peat mat, functions of hyrdophytic vegetation habitat, fish, amphibians, wildlife, and migratory bird habitat. Other Class Three wetlands which are not subject to regulation under the VWRs are represented on VSWI Map #26D. Although, these are not specifically regulated by the VWRs, they do constitute waters of the United States which may be addressed in a 401 Certification. The ANR Certification on appeal did address these impacts to some degree. Nevertheless, the Appellants have not identified any substantial interest adversely affected by Killington's project with respect to these Class III wetlands. The Board, therefore, declines to include within the scope of review impacts to any Class III wetlands affected by the Project. (See Section II.A.2.(5)(s)). (4) Certain issues (e.g. Woodward Reservoir water level fluctuations, potential adverse impacts to aquatic habitat and recreational resources in Woodward Reservoir and Associated Waters) have been raised and are clearly within the scope of the Board's de novo review of this 401 water quality certification. These issues are properly addressed in this appeal because the Appellants' have demonstrated in their request for party standing not only that they have been aggrieved by the secretary's actions relative to these issues, but also that the potential impacts could affect their substantial interests in the resources and values sought to be protected by the VWQS and other appropriate requirements of state law. These issues are as follows: (d) Whether the Project will not result in the maintenance and protection of all existing water quality standards for Woodward Reservoir and the affected brooks and streams (i.e. Associated Waterbodies) contrary to the provisions of 1-03 of the VWQS. (e) Whether the Applicant provided an inadequate review of water conservation measures, water use efficiency and ground water alternatives. (f) Whether the Applicant has failed to adequately consider feasible and reasonable alternatives to the Woodward Reservoir drawdown and its effect on Reservoir Brook, and other brooks (i.e. the Associated Waterbodies), as required by 16-05 of the Environmental Protection Rules concerning Water Withdrawals for Snowmaking. (h) Whether the water drawdown (of Woodward Reservoir) will affect ice thickness and may result in dangerous ice conditions adversely impacting on recreational uses, and aesthetics. (potentially duplicative of issue (k) below) (i) The following allegation of error is not clear on its face. In the Notice of Appeal it reads: "The permit analysis was incomplete on the effects of the change of dissolved oxygen on aquatic biota related to the downstream." (The Board finds this duplicative of paragraph (g), below. Accordingly, any dissolved oxygen issues will be subsumed within the Board's conclusions regarding compliance with the applicable subsections of 3-01.) (k) Whether the Project and ice conditions will result in an undue adverse effect on existing and beneficial values contrary to 2-02 of the VWQS. (l) Whether the Project may result in an adverse effect on the aquatic vista, the physical and chemical nature of the substrate and the species composition, and propagation of fish as described in 3-01(B)(5) of the VWQS. (m) Whether the construction of intake and pipeline and the associated winter water drawdown may result in undue erosion and sedimentation at the Woodward Reservoir. (p) Whether the Applicant has failed to prepare a sufficient water level management plan to assure the protection of smelt spawning and protection of resident fish from predators in the Woodward Reservoir and streams. (t) Whether the Applicant has submitted an approved monitoring plan and developed adequate safety devises to determine permit compliance. (5) Finally, the remaining issues which the Appellants have raised in their Notice of Appeal are only within the scope of review in this 401 Certification review to the extent that they address impacts to Woodward Reservoir and Associated Waterbodies. Appellants have demonstrated that as the following issues relate to Woodward Reservoir and Associated Waterbodies, Killington's proposed impacts may adversely impact Appellants' substantial interest. With respect to the Interconnect Project and potential impacts to other waterbodies in the Project area, however, those impacts, though potentially adverse, do not affect Appellants substantial interest - as required for party standing under WBR 22(A)(7). Where the allegation of error extends to both the Woodward Project and the Interconnect, we have noted the inclusion of the issues identified below at least to the degree that they relate to Woodward Reservoir and Associated Waterbodies. This ruling must not be read to imply that the Board is less concerned with protection of the waters and wetlands contained within Class A watersheds generally, and the waters affected by the Interconnect in particular. Indeed, these are unquestionably waters which merit the strongest protection. Rather, the Board excludes these issues from the scope of review in this case because, as discussed in the Chair's Rulings on Party Standing, the substantial interests which Appellants seek to protect involve Woodward Reservoir and Associated Waterbodies. Appellants have failed to explain with specificity any substantial interests which these Appellants seek to protect relative to those other waters potentially impacted by the Interconnect. Accordingly the following issues will only be included as they relate to Woodward Reservoir and Associated Waterbodies: (a) The Certification violates water quality policy set forth at 10 V.S.A. 1250 (I) Specifically, subparagraph 6 which states that it is the policy of Vermont to: "protect from risk and preserve in their natural state certain high quality waters, including fragile high-altitude waters, and the ecosystems they sustain." (b) The Certification violates 3-02 and 3-03 of the VWQS for Class A and Class B waters. (3-03 will apply only with respect to Woodward Reservoir and Associated Waterbodies). (c) There has been no demonstration that adverse effects of the Project have been minimized such that only a limited reduction in water quality is being allowed pursuant to the Anti-degradation policy set forth at 1-03 of the VWQS. (1-03 will apply only to Woodward Reservoir and Associated Waterbodies) (g) The Certification violates the provisions of Water Quality Criteria 3-01 of the VWQS for aquatic habitat (Killington must demonstrate that the Woodward Reservoir and Associated Waterbodies complies with 3-01 - see also II.A.2(4)(I) and II.A.2.(4)(l) above). (q) Construction of the Interconnect will result in undue erosion and transport of sediment to the brook involved and the Applicant has failed to prove that the biological community will not experience adverse impacts due to a degradation of the Class A waters. (s) The Applicant failed to submit an evaluation of the habitat function of wetlands impacted by the Interconnect prior to issuance of the Certificate. (Appellants have waived the applicability of the VWRs, in this proceeding. Moreover, other than the Class Two Floating Peatland, the Appellants have not identified any other Class One or Two Wetlands potentially affected by the Project. Therefore, even if the Board were to reach this issue, it could only consider impacts to these waters of the United States under the VWQS and other applicable law.) (v) The Water Quality Certificate Application is incomplete due to lack of final designs of all intakes, pipeline crossings and the interconnect trail and road stream crossings. (Such argument will be allowed only to the degree that it impacts Woodward Reservoir and Associated Waterbodies). Killington has argued that although there is a single Certification for the Project, the application materials, and the documentation in support thereof, specifically relate to either the Woodward Project or the Interconnect Project. Where appropriate, reference has been made based on this distinction. Notwithstanding, the action under appeal consisted of the issuance of a single Certification. The party standing determinations were made based on the secretary's action taken pursuant to 10 V.S.A. 1004 relative to the entire project. These rulings on the scope of review address Killington's argument and have the effect of narrowing the scope of review to issues associated with the Woodward Project. While Killington has requested that the Board dismiss the appeal as to the Interconnect, there has been no action of the secretary specific to the Interconnect. The Board concludes that its rulings on scope of review are sufficient to appropriately limit the subject matter of the appeal and declines to grant Killington's request to dismiss as to the Interconnect. B. OTHER APPROPRIATE REQUIREMENTS OF STATE LAW The parties have submitted filings relative to determining the other appropriate requirements of state law that the Board should consider in this proceeding. See 33 U.S.C. 1341. Those which the Board deems applicable in this 401 appeal, in addition to the VWQS are as follows: Chapter 16 of the Environmental Protection Rules, effective February 15, 1996, Water Withdrawals for Snowmaking; 10 V.S.A. 1250 - Vermont Water Quality Policy. C. PARTY STATUS The only objection to the Chair's Rulings on Party Status pertains to whether the Belangers should be afforded party status because throughout proceedings before ANR and the District Environmental Commission they have represented the interests of Mrs. Belanger's parents, the Nacels. It appears that the objection was levied on the basis that the Belangers believed that they would be foreclosed from participation - even in a representative capacity or as witnesses. In any case, the Nacels are represented by counsel and any participation by the Belangers on behalf of the Nacels or as witnesses in their case is a matter for the Appellants' counsel to address. The Board affirms the Chair's decision to deny the Belanger's request for party standing. III. ORDER A. FINAL STATEMENT OF ISSUES ON APPEAL 1. Whether the Project complies with 1-03 of the VWQS in relation to the Woodward Reservoir and Associated Waters. 2. Whether the Project complies applicable water conservation measures, water use efficiency and ground water alternatives including those set forth in Chapter 16 of the ANR's Environmental Protection Rules entitled "Water Withdrawals for Snowmaking, and in particular, 16-05 of those Rules 3. Whether the Project complies with the requirements of 16-05 of the EPRs concerning Water Withdrawals for Snowmaking. 4. Whether the water drawdown (of Woodward Reservoir) will affect ice thickness to the extent that the Project would fail to support the beneficial uses and values set forth at 3-03(A). 5. Whether the Project will comply with 3-01(B)(5) of the VWQS - particularly in regard to the impacts of the Project on the physical and chemical nature of the substrate, the species composition, and the propagation of fish. Such review shall include an analysis of whether the construction of intake and pipeline and the associated winter water drawdown may result in undue erosion and sedimentation at the Woodward Reservoir. 6. With respect to 3-03(A) and 3-01(B)(5) of the VWQS, as well as the requirement that existing uses shall be protected, whether the Applicant's water level management plan ensures the protection of smelt spawning and protection of other aquatic biota. 7. Whether the Woodward Reservoir and Associated Waterbodies constitute high quality waters thereby implicating the provisions of 1-03 (C). 8. Whether the Project complies with 10 V.S.A. 1250. 9. Whether Woodward Reservoir or any Associated Waterbodies within the scope of the Board's review merit the level of protection contemplated by 10 V.S.A 1250(6) and if so whether the Project "protect[s] from risk and preserve[s] in their natural state certain high quality waters, including fragile high-altitude waters, and the ecosystems they sustain." 10. Whether the Project complies with 3-03(B) of the VWQS. 11. In addition to the criteria of VWQS at 3-01(B)(5) discussed above, whether the Project complies with the other applicable criteria of the VWQS set forth in 3-01 (the Board intends this provision to be inclusive of all general criteria listed in 3-01 except 3-01 B.3.c and 3-01 B.10.b although it expects that certain other sections of the general criteria will not be in issue (e.g. 3-01 B.11 and B.10.a, c and d)). B. PREHEARING ORDER TO FOLLOW A Prehearing Order, including the Statement of Issues set forth in this Memorandum of Decision will be issued later this week to address outstanding preliminary issues in the referenced matter, including rulings on the petitions for Amicus Curiae status. The Prehearing Order will also address several issues relative to MLP-97-09. The Prehearing Order, once issued, shall guide the course of the remainder of these proceedings. Additional prehearing conferences and supplemental orders may be required prior to the hearing. If a subsequent prehearing conference is conducted for any purpose, parties will receive written notice. Dated at Montpelier on this 30th day of March, 1998. WATER RESOURCES BOARD /s/ William Boyd Davies ___________________________ William Boyd Davies Concurring: Ruth Einstein Jane Potvin Gail Osherenko Gerry Gossens J:\DATA\DECISION\WRB\APPEALS\WQ9710.MOD