Re: Killington Ltd., Docket No. WQC-97-10 (Appeal of DEC's issuance of Section 401 Water Quality Certificate), Memorandum of Decision on Appellants' Motions to Alter and Continue, ANR's Motion for Clarification, and Killington's Objection to the Participation of VNRC as Amicus. (May 20, 1998) State of Vermont WATER RESOURCES BOARD MEMORANDUM OF DECISION ON APPELLANTS' MOTIONS TO ALTER AND CONTINUE, ANR'S MOTION FOR CLARIFICATION, AND KILLINGTON'S OBJECTION TO THE PARTICIPATION OF VNRC AS AMICUS RE: Killington Ltd. Docket No. WQC-97-10 Killington Road (Appeal of DEC's issuance of 401 Killington, VT 05751 Water Quality Certificate) This decision pertains to Appellants' Motion to Alter and the Agency of Natural Resources' ("ANR") Motion for Clarification, both of which were filed in response to the Water Resources Board's ("Board") March 30, 1998 issuance of a Memorandum of Decision on the Scope of Review and Other Appropriate Requirements of State Law ("Memorandum of Decision"); it also addresses Appellants' Motion to Continue and Killington's objection to the participation of VNRC as amicus curiae. The Memorandum of Decision defined the scope of review and determined the appropriate requirements of state law applicable to this proceeding. This decision affirms the prior Memorandum of Decision with a clarification as to the legal status of the Vermont Wetland Rules ("VWRs") in the context of a 401 proceeding. In addition, this decision denies the Appellants' request for a continuance of the proceeding and affirms the Chair's granting of amicus curiae status to VNRC. I. DISCUSSION A. Appellants' Motion to Alter In the Motion to Alter, Appellants first allege that the Board has confused the principle of standing to file an appeal with the related issue of "party standing" set forth in Water Resources Board Rule of Procedure ("WBR") 22 which Appellants seem to contend applies only to intervenors. Appellants argue, in essence, that the test for qualifying as a party under WBR 22(A)(7) is whether a person demonstrates a "substantial interest" which may be adversely affected by the outcome of the proceeding, and they argue further that to the extent the "substantial interest" test layers a more rigorous requirement for party standing on top of a permissive statutory standing test of "any person aggrieved" set forth in statute, it is unauthorized. The Board agrees with Appellants on this interpretation of the relationship between a statutory requirement concerning an appellants' party standing and the Board's characterizations of the parties in a particular case pursuant to WBR 22. See Re: Killington Ltd., Docket No. MLP-97-09, Memorandum of Decision, (February 10, 1998), where the Board ruled in the consolidated proceeding that although parties had met the statutory requirements of standing under 29 V.S.A. 406(a), it would "[n]evertheless . . . consider whether the Appellants may be a party to the appeal filed by Mr. Lenge under Rule 22(A)(7)." Id. at page 5, and footnote 4.. To alleviate confusion, the WBR's use of the term party standing might more appropriately be termed "party status." Indeed, in many if not most Board cases, the term "party status" is substituted for the actual language of the current rule. See for example, In re Appeal of Larivee, Docket No. 92-09, Preliminary Order: Party Status (March 16, 1993); and In re: Aquatic Nuisance Control Permit #C93-01-Morey, Docket No. WQ-93-04, Memorandum of Decision on Party Status (August 25, 1993). Even with the present language of the rule, however, it is clear that the Board's characterizations of types of parties under WBR 22 is not limited to intervenors. It is important to reiterate that no party has argued that Appellants and other Intervenors were not aggrieved to some degree by the "decision" of the Secretary. Indeed, the Chair's Rulings on Party Standing ("Party Standing Rulings"), confirm that Appellants in this matter have made a general showing that they were "aggrieved by the decision of the Secretary" with respect to the Secretary's issuance of a Water Quality Certification dated November 21, 1997 and issued to Killington, Ltd. The Appellants were aggrieved by the Secretary's decision, they filed a timely notice of appeal, jurisdiction over this matter vested with the Board, and the appeal stayed the 401 Certification previously issued by the Secretary. Statutory standing, and as a consequence, the Board's jurisdiction over this matter, has not been an issue in dispute from the time the Chair's Rulings on Party Standing became a final order. The remaining issue has been with respect to the extent of the Appellants' participation in this appeal, driven by the extent of their aggrievement or injury. In its Memorandum in Response to Appellants' Petition for Party Standing filed on February 3, 1998, Killington raised concerns about the extent of Appellants' standing. In its filing Killington described in detail the two components of its proposed project, referred to throughout this proceeding as the Woodward Reservoir Project and the Interconnect Project. All parties agreed that Appellants may have been aggrieved with respect to the Woodward Reservoir Project. Killington objected, however, to the Appellants' "standing" with respect to the Interconnect Project. In its February 3, 1998 filing, Killington asked this Board to determine party standing independently for each component of the Project. The Board declined to so rule on the basis that for purposes of determining standing, there was a single appealable decision of the Secretary, the Appellants were aggrieved by the issuance of that decision, and the appeal was timely and properly filed with the Board. In granting Appellants and Intervenors' party standing in the initial phase of this 401 appeal, the Board, acting through its Chair, was reluctant to preclude a meaningful discussion of the arguably separate components of the proposed project and its rulings on party standing were made with a concerted focus on the statutory requirements of 10 V.S.A. 1024. Those requirements dictate that appellate jurisdiction vests with the Board when a timely appeal has been filed by a person aggrieved by the decision. The Board's Chair was, nevertheless, mindful of the arguments raised by Killington, and indeed, reasoned that even on the face of Appellants' Notice of Appeal, the aggrievement suffered by Appellants appeared to be limited to proposed activities involved in the Woodward Reservoir Project. An excerpt from the Chair's Rulings on Party Standing is illustrative: The Appellants' concerns appear to be most clearly linked to the impacts of the Expanded Snowmaking component of the Project and specifically the proposed impacts to the water levels, aquatic habitat, and other components of the water quality of Woodward Reservoir, the streamflow, aquatic habitat and other components of the water quality of Madden Brook, Reservoir Brook, and Falls Brook. All of these impacts are associated with the Expanded Woodward Reservoir Snowmaking Project - or as Killington calls it, the "Woodward Project." Chair's Rulings on Party Standing, WQC-97-10, February 23, 1998, at Page 4. The Chair's Rulings on Party Standing further state that: Killington has specifically requested that the Board limit the Appellants, and the intervenors' party standing to those concerns which are presented by the secretary's approval of the Woodward Project. The rationale laid out by Killington for "separating" the Project into two components seems to be a logical way of focusing more clearly on the potential impacts that the Appellants and Intervenors have identified in the Notice of Appeal and their subsequent filings. However, it is questionable whether the Chair's rulings on party standing are the proper place to exercise the Board's discretion to limit the subject matter of evidence and legal argument on which the Appellants and other parties can go forward. This seems particularly troublesome where the Appellants' party standing requests have been filed based on the statutory guidance of 1024(a) allowing any aggrieved person to appeal the secretary's action [emphasis added]. Id. The Board's Chair specifically declined to limit Appellants' rights of participation, or to "dismiss as to the Interconnect" in his Ruling on Party Standing despite being asked to do so by Killington. The Chair determined that such a ruling, which could have the effect of limiting the Appellants' ability to present evidence on the Interconnect issues, would be more appropriately reserved for the Board's ruling defining the scope of review. The Board finds that this approach is reasonable particularly where, as in this case, there is a single decision for purposes of conferring standing, but where certain of the separate or distinct "actions" do not form the basis for appellant's aggrievement. Stated another way, if a distinct action of the Secretary which is subsumed within a single "decision" does not result in some threat of injury to appellants' protected legal interest, the Board may limit the proceeding to those actions which do form the basis for an appellant's aggrievement. An illustrative example which emphasizes the administrative reasonableness of such an approach follows. Assume that a linear project encompassing hundreds of miles, such as a gas pipeline or transportation corridor extending from Bennington to St. Johnsbury, were proposed to be developed and required a 401 certification. The threat of impacts or injury to protected legal interests of would-be appellants throughout the state could be widespread and significant. In such a case, one might expect a Bennington appellant to be aggrieved with respect to the decision based on the threat of injury to its legal interest or use of some property in the Bennington area. From the perspective of statutory standing, the threat of injury would be sufficient to confer standing and vest jurisdiction as to "the decision." Assume further that the Bennington appellant was the only appellant and that all parties to the case were interested in the same legal interest or property entirely within the Town of Bennington. Although the Board's jurisdiction would initially extend to the entire decision, exercise of such jurisdiction, without limitation of the scope of review, would require the applicant to carry its burden of proof as to the entire project. Assuming these hypothetical appellants could make their most persuasive arguments relative to potential wetland impacts addressed by the certification in St. Johnsbury, they might prevail despite having neither a legal interest in that wetland nor a demonstrated injury with respect to it. One administrative option to avoid the above scenario might appear to be the issuance of several or even dozens of 401 certifications along the route, wherever warranted by the issuance of 404 permits, or other federal permits or licenses. While this may potentially solve the problem of a Bennington appellant prevailing based on an applicant's failure to carry his burden with respect to a St. Johnsbury wetland, it would undermine the ANR's ability to address the cumulative impacts of such a large scale project. ANR has an obligation to review a project's potential impacts and certify the project's compliance with the Vermont Water Quality Standards ("VWQS"), and other applicable law based on the proposed project in toto. Were the Board to accept Appellants' reasoning on this issue, it would strictly limit the Board's ability to refine the scope of review. In a given case, the scope of review would include not only those issues addressed in the decision on appeal from which the Appellants' threat of injury arises, but all other issues addressed in the Certification, and all other waters and lands affected by the issuance of the 401 Certification despite the limited extent of an appellant's injury. In the Motion to Alter, Appellants have argued that the Board "has also confused party status with scope of the appeal." In support of that claim, Appellants contend that "Appellants identified all of the issues for a 401 appeal, and as such they are entitled to have those issues heard. Party status is irrelevant to that conclusion; having achieved party status by filing a notice of appeal and thereby vesting jurisdiction in the Board, party status no longer enters the picture." The Board concludes that Appellants overstate their entitlement to have all issues heard irrespective of a whether or not they have demonstrated the extent of their aggrievement. As discussed below, the extent of their aggrievement, or injury is a function of party status, as measured by the substantial interest test. One of the virtues of the 401 certification process is the breadth of review it offers with respect to potential impacts to water quality. In the appellate context, however, the necessity of reviewing all applicable sections of the VWQS for all waters potentially affected by the decision is not dictated by an appellant. Rather, it is the product of both a timely notice of appeal, and a demonstration of an actual or threatened injury. As discussed above, the statutory standing requirement is the threshold inquiry to determine whether jurisdiction vests with the Board. Here the standard is whether Appellants were aggrieved. The statutory standard allowing those persons aggrieved by an agency's action to file an appeal is pervasive throughout the Vermont statutes as the test of "standing." Notwithstanding, there has been limited guidance in Vermont on the precise definition of what it means to be aggrieved. See Trombley v. Bellows Falls Union High School District, 160 Vt. 101, 106 (1993) (Court stated that "we need not define aggrieved' in order to hold that plaintiffs must make some showing of injury to obtain relief.") In part, this is because such a determination is the product of a case-by-case inquiry. See In re: Aquatic Nuisance Control Permit #C93-01-Morey, Docket No. WQ-93-04, Memorandum of Decision on Party Status (August 25, 1993) at page 4; (Board reads person aggrieved standard broadly, obtaining guidance in making its standing determinations through an examination of the legislation enabling the secretary's decision, the Board's own implementing rules (where applicable), and the Board's procedural rules). The federal environmental statutes in which the test for standing is also "persons aggrieved" have spawned a substantial body of case law interpreting the standing requirements authorizing "citizen suits" or appeals from NEPA, ESA, FLPMA and CWA determinations. These federal cases include a variety of tests to confer standing and with which to shape the appropriate scope of the court's review. The recent federal cases are all guided by two recent U.S. Supreme Court cases addressing standing in the contexts of the ESA, Lujan, Secretary of the Interior v. Defenders of Wildlife et al., 504 U.S. 555 (1992); and FLPMA/NEPA, Lujan, Secretary of the Interior v. National Wildlife Federation, 497 U.S. 871 (1990). Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445 (10th Cir. 1996) addressed standing in a NEPA action involving a proposed ski area expansion at the Taos ski area and summarizes the federal law test for standing. In Rio Hondo, the Court required the plaintiff to demonstrate standing by showing that the Forest Service's approval of summer use of the ski area (1) created increased risk of actual, threatened, or imminent environmental harm; and to demonstrate further (2) that the increased risk of environmental harm injures its concrete interests by demonstrating either its geographical nexus to, or actual use of the site of the agency action. Id. at 449. While it is settled that the injury needed to confer standing may be noneconomic in nature, scope of review may be appropriately limited to the portion of the agency decision which results in the injury or aggrievement borne by appellant. Sierra Club v. Morton, 405 U.S. 727 (1972). The Board declines to specifically adopt the test used by the federal courts as it is confident that its own Rules of Procedure at Rule 22 provide ample guidance on the issue of what is necessary to demonstrate that an appellant or intervenor has demonstrated an injury. The test used under WBR 22(A)(7), for example, requires a demonstration that the complained of action affects the parties' substantial interests. The Board concludes that in a case such as this one, it is appropriate to consider whether each distinct component of the Secretary's decision affected the appellant or intervenor's substantial interest. While the substantial interest test may also not be precisely defined, it provides additional guidance for decisionmaking without resorting to the rigorous methodology for determining standing and party status evolving in the federal courts. Regardless of how the test is framed, the fundamental question is whether the Board has authority to limit the scope of review based on an appellants' demonstrated injury. The Court held in In re Town of Sherburne, 154 Vt. 596, 611 (1990) wherein the Board prohibited certain evidence with respect to downstream impacts of a discharge, that the Board must be permitted to exercise reasonable discretion in limiting the scope of evidence offered before it. It is the exercise of this discretion which authorizes the Board to appropriately limit the scope of review once an appeal has been properly filed and jurisdiction vests with the Board. In each case the Board translates the scope of review to a concise statement of the issues on appeal. In its Memorandum of Decision, those issues were set forth in order to guide the subsequent course of the proceeding and to notify parties as to the issues which the Board will address. The Court has held that such a clarification of issues on appeal is a component of the parties' due process rights in an administrative proceeding. See In re Vermont Health Service Corp., 155 Vt. 457, 461 (1990). Here, the question can be distilled to an inquiry concerning whether the specific actions of the Secretary relative to Killington's "Interconnect" project have either threatened injury to or caused an actual injury to Appellants' protected legal interest. The Board has twice revisited the Appellants' Petition for Party Standing in the context of defining the appropriate scope of this appeal and has concluded each time that the Appellants have failed to allege with any specificity, injury or threat of injury to any substantial interest - or any legally protected interest - affected by the Interconnect Project. One commentator has emphasized the importance of presenting documentation in support of claims of party standing as follows: Standing must be the first thing [a practitioner] think[s] of in case preparation, not the last. It should be evaluated critically as part of the decision to bring a particular case. * * * Affidavits from members of client groups who are injured by the potential defendant's action must describe, in a concrete and particularized way, the interests of the affiants and how the proposed action affects those interests. The affidavits should be as specific as possible about the land areas used, the frequency of use, plans for continued and future use, and the precise nature of the harm done. The affidavits must also describe an injury that is distinct from the injury suffered by the general public. Violation of the law alone, is not a sufficient harm. Sheldon, Karin P., Lujan v. Defenders of Wildlife: The Supreme Court's Slash and Burn Approach to Environmental Standing, 23 Environmental Law Reporter 10031, January 1993. The above stated considerations are not binding upon appellants or intervenors in Water Resources Board proceedings. Nevertheless, affidavits or information such as that which is suggested in the excerpt above might have provided a reasonable basis upon which to find substantial interests in the area affected by the Interconnect. Indeed, in the Petition for Party Standing, such representations were persuasively made relative to Woodward Reservoir and the Associated Waterbodies. With respect to the Interconnect, however, the Board was provided with only the bare assertion that the Appellants fish in or hike in the area potentially affected by the Interconnect Project. The above discussion emphasizes the manner in which the Board used its party status standard set forth in WBR 22(A)(7), not in an effort to supersede the statutory standing test, but to ensure that the scope of review was not inclusive of particular ANR actions within the context of the "decision," from which no injury to Appellants' legally protected interests has been established. Standing is, as Killington has characterized it, the "ticket of entry" to the appellate proceeding. Statutory standing does not, however, allow the Appellants to dictate any and all matters which will be heard. The Board in declining to revisit the entire certification is not constructing a barrier to comprehensive appeals of a 401 certification. Rather, it is ensuring that Appellants "ticket of entry" be limited, where appropriate, to those aspects of the decision on appeal where Appellants have demonstrated an injury or threat of injury to a protected legal interest. The Appellants next contend in their Motion to Alter that the Board is limited in defining the scope of review because of the de novo nature of the appeal. Appellants argue that all sections of the VWQS, and presumably all other potentially applicable requirements of state law under 401(d) of the CWA are in issue without limitation. The Board need not restate its previous discussion of this issue. No party has argued that with respect to all issues properly within the scope of the appeal, the review standard is something other than de novo. With respect to the issues raised in the Notice of Appeal, and for which the 401 proceeding has been determined to be the appropriate forum for consideration of these issues (i.e. those issues set forth on pages 15 (CORRECTED) and 16 of the March 30, 1998 Memorandum of Decision on the Scope of Review and Other Appropriate Requirements of State Law), the review standard is de novo. The Appellants also make a claim that "the Wetland Rules do apply to a 401 appeal." As discussed in Part I.C., the Board concurs with this statement. However, the Appellants now assert, through this Motion to Alter, a position which stands in stark contrast to the Appellants' claim in the February 13, 1998 Memorandum of the Issues. Therein, at footnote 1, Appellants "recognize[d] the lack of necessity of raising . . . a direct challenge to the decision based on a violation of the Vermont Wetland Rules, which are also outside the jurisdiction of the Board." Irrespective of the Board's ability to consider the VWRs as other appropriate requirements of state law in this or any 401 appeal in which wetland impacts are involved, Appellants abandoned this claim within the context of their Memorandum on the Issues. An additional rationale for declining to address compliance with the VWRs in this proceeding, the Board notes that a CUD was issued for this project addressing the potential impacts to the floating peat mat adjacent to Woodward Reservoir, a Class Two wetland. No appeal of that decision was taken by either Appellants or any other party. As a result, the CUD became a final order. The Board may have more aggressively pursued a review of compliance with the VWRs as properly within the scope of review in this proceeding had the Appellants either contested the CUD, or maintained in their Memorandum of the Issues that they would seek to demonstrate that the proposed Woodward Reservoir Project did not comply with the VWRs. Such is not the case. The Board read Appellants' waiver of the applicability of the VWRs in conjunction with Appellants' decision not to appeal the issuance of the CUD as an indication that arguments relative to aquatic habitat impacts associated with the Class Two wetland, to the extent they might be pursued at all, would only be made in conjunction with the Appellants' arguments as to compliance with the VWQS. Based on the foregoing, the Board maintains that a determination of compliance with the VWRs is not appropriately in issue in this proceeding. In In re: Appeal of Poultney River Committee, Docket No. 92-04 (August 11, 1992), the Board, by preliminary order, limited the scope of review in an appeal involving a 1992 amendment to an existing aquatic nuisance control permit. Rather than re-visit the validity of the entire permit, the Board heard evidence only with respect to the five proposed modifications. In making that decision, the Board relied in part on the legal principle of issue preclusion. In Poultney River, portions of the 1992 permit on appeal were specifically incorporated from a recently amended permit that was issued in 1991 and not appealed. The Board discussed in some detail the preclusive effect of the 1991 permit amendment decision, noting that where it had not been appealed the decision should be given preclusive effect even where, as here, the prior proceeding from which no appeal had been taken was not a formal adjudicatory process. Id. at 4. On appeal to the superior court, the court found the Board's exercise of discretion in limiting the scope of appeal and its reliance upon issue preclusion to be reasonable. In re Appeal of Poultney River Committee; Rutland Superior Court, Docket No. SO693-92 RcCa, (J. Jenkins) (February 3, 1994). The Board's ruling in the Memorandum of Decision relative to consideration of the CUD impacts is similarly a reasonable exercise of the Board's discretion. In the context discussed herein, issue preclusion is a legal principle that prevents persons who had an adequate opportunity to litigate the issues determined by a former administrative action, or an appeal of that action, to collaterally attack a prior decision. Allowing the Appellants to do so in this case would force a re-litigation of the issues addressed in the administrative decision before the ANR. Such a re-litigation of issues already finally determined by the appropriate agency, not only presents concerns from the standpoint of the CUD applicant which has received a favorable determination that was not appealed, but also compels an unwarranted assessment of the ANR's fact-finding and legal determinations resulting in the issuance of the CUD. The wetland impacts associated with ANR's issuance of the CUD were discussed in the context of public hearings convened with respect to Killington's application. Appellants had an opportunity to participate in those hearings, and if aggrieved by the decision reached by the Secretary, had the opportunity to request a contested case proceeding on the CUD before the Board. While the Board has clarified herein, that the VWRs, as a general matter, are other appropriate requirements of state law to be considered in a 401 appeal, the Board repeats its decision that consideration of the VWRs with respect to the proposed Woodward Reservoir project would be inappropriate, based in part on the foregoing discussion, and also on Appellants' own representations in their Memorandum on the Issues. That Appellants now assert new arguments for a specific assessment of compliance with the VWRs is unavailing. Appellants present a general argument regarding fairness, particular in regard to what they characterize as a bifurcation of the appeal, and effectively, a dismissal of the appeal as it relates to the Interconnect. From the outset of the proceeding, the parties have been informed that the Notice of Appeal and other filings provided to the Board would shape the subsequent course of the proceeding. In several instances, the Board directed the parties to submit specific filings to manage the logistics of the case, including issues of representation, party status, and an appropriate statement of the issues on appeal. One such filing was the Appellants' February 13, 1998 Memorandum of the Issues. That filing was originally allowed to follow up on the Appellants' previous counsel's unwillingness to state orally at the prehearing conference, with some specificity, what the issues were in the appeal, and what injury the Appellants claimed with respect to the Interconnect. On the date such filing was due, Board staff received an entry of appearance from Attorney Gillies who was substituting as counsel for Appellants in place of Curtis Bourdon. The Board's Chair granted Appellants a modest extension of the filing deadline to allow Attorney Gillies to become apprised of the legal issues in the case and to prepare the Memorandum on the Issues. The Memorandum of the Issues was filed without further support for why Appellants were aggrieved or potentially injured by the Secretary's actions relative to the Interconnect, and with an express abandonment of a Vermont Wetland Rules claim. All of the matters raised in the Appellants' Motion to Alter were on the table at that point in the proceeding. The alleged unfairness of the bifurcation of the distinct components of the 401 Certification on appeal is unfounded. The Board excluded from the scope of appeal the so-called "Interconnect issues" because Appellants have made no reasonable claim of injury or aggrievement with respect to those issues. The Appellants' concerns over potential Class A watershed impacts evince only a generalized concern for which there has been no substantiation of any specific injury to Appellants. Any demonstration of substantial interests, or legally protected interests potentially affected by the proposed project would have brought the Interconnect issues within the scope of review. Appellants were aware of this requirement in light of the Board's Ruling on Party Standing and the issues specifically addressed at the prehearing conference. Notwithstanding, no affidavits or other information summarizing Appellants use of the Interconnect lands or waters, threat of injury, or the potential connection with or impacts to Woodward Reservoir were provided. Finally, the Appellants again claim that a separate and distinct public trust analysis should be conducted in the context of the 401 review. Were the Board to address the Interconnect issues, the Appellants claim would be more persuasive. As described herein, however, the only issues are those involving the Woodward Reservoir and Associated Waters. The Board will specifically address those issues in the case consolidated with this one, MLP-97-09. For the foregoing reasons, Appellants' Motion to Alter is denied. B. Motion to Continue The Board is not persuaded that a continuance of this matter is warranted. The Motion to Continue is denied. C. Motion for Clarification ANR sought clarification of the Board's Memorandum of Decision on the Scope of Review and the Other Appropriate Requirements of State Law. The specific issue raised by ANR's Motion for Clarification is whether the Vermont Wetland Rules are Other Appropriate Requirements of State Law pursuant to 401(d) of the Clean Water Act in the context of a 401certification application, or on appeal. The Board is reluctant to state that the VWRs are unequivocally applicable to a 401 certification proceeding because there may be cases in which no Class I or II wetlands are involved. In addition, the language of 401(d) contains a phrase allowing consideration by the certifying agency, or in this case, the Board, to determine which requirements are appropriate. In this case, the Board concurs with the ANR's position that the VWRs are requirements of state law that would be appropriate for consideration in this proceeding where the project may adversely affect Class Two wetlands. Notwithstanding, the VWRs are inapplicable to this proceeding because they have been waived by the Appellants and a CUD addressing the floating peat mat adjacent to Woodward Reservoir was issued and not appealed by the Appellants or any other party. As such, and as described in Section I.A., allowing the Appellants to require Killington to demonstrate compliance with the VWRs in the context of this proceeding would permit Appellants to effectively file an indirect appeal of the CUD which is a final order of the ANR addressing impacts to the Class Two wetland under the VWRs. D. Killington's Objection to the Status of VNRC as Amicus Curiae Killington's objection is overruled. To the extent the Memorandum of Decision, as affirmed herein, limits the scope of review, such ruling might limit the extent of VNRC's participation, and all other parties' participation. The Board finds no basis upon which to exclude VNRC's participation entirely. VNRC will retain its status as amicus curiae. II. ORDER A. The Motion to Alter is hereby denied. B. The Motion to Continue is denied. C. The Motion for Clarification is hereby granted, as described above at Section I.C. D. VNRC will retain its status as amicus curiae. It is so ordered. Dated at Montpelier, Vermont on this 20th day of May, 1998. VERMONT WATER RESOURCES BOARD by its Chair Concurring: Jane Potvin Gerry Gossens Ruth Einstein Not participating: Gail Osherenko