RE: Husky Injection Molding Systems, Inc., (Arrowhead Mountain Lake, Milton, VT), Memorandum of Decision, Docket No. MLP-98-06 (DEC #98-13) (Feb. 22, 1999) State of Vermont WATER RESOURCES BOARD RE: Husky Injection Molding Systems, Inc. Docket No. MLP-98-06 (DEC #98-13) (Arrowhead Mountain Lake, Milton, VT) MEMORANDUM OF DECISION This decision is in response to objections to the Chair's Preliminary Ruling on standing and party status and also addresses certain preliminary issues raised by the parties. I. BACKGROUND On October 27, 1998, the Department of Environmental Conservation ("DEC"), Agency of Natural Resources ("ANR") issued Permit No. 98-13 ("Encroachment Permit") to Husky Injection Molding Systems, Inc., ("Husky"), authorizing the construction of a new bridge over Arrowhead Mountain Lake in the Town of Milton, Vermont ("Project"). The Encroachment Permit was issued pursuant to 29 V.S.A. ch. 11 ("Management of Lakes and Ponds statute"). On November 3, 1998, the Water Resources Board ("Board") received a notice of appeal filed by John L. Franco, Jr., Esq., on behalf of his clients, the Building and Construction Trades Council of South Burlington ("BCTC"); Richard Prisco of Milton, VT; Bryan Bouchard of Milton, VT; Alan Cadorette of Milton, VT; Jeffery Towne of Milton, VT; Kenneth Cassidy of Milton, VT; Jeffrey Provost of Milton, VT; Kevin Barron of Milton, VT; Scott Carleton of Milton, VT; Chris Bressette of Milton, VT; Michael Hathaway of Milton, VT; Kenneth Smith of Burlington, VT; and Kathleen Richland of Cambridge, VT (individually and collectively "Appellants"). This appeal was filed pursuant to 29 V.S.A.  406(a). On November 3, 1998, the Board's Executive Officer advised the Appellants that their filing was substantially complete and docketed the matter as MLP-98-06. On November 5, 1998, a Notice of Appeal, Prehearing Conference, and Hearing was issued and subsequently published in the Burlington Free Press in accordance with Rule 20. The notice provided that party status petitions should be filed with the Board on or before November 19, 1998. On December 7, 1998, the Board's Chair convened a prehearing conference in this matter pursuant to Procedural Rule 24. The Chair issued a Prehearing Conference Report and Order on December 14, 1998. Those persons preliminarily granted party status by the Chair were: (a) Town of Milton ("Town") pursuant to Rule 22(A)(1); (b) Town of Milton Planning Commission ("Town Planning Commission") pursuant to Rule 22(A)(2); (c) Chittenden County Regional Planning Commission ("CCRPC") pursuant to Rule 22(A)(3); (d) ANR, including the DEC, pursuant to Rule 22(A)(4); (e) Agency of Commerce and Community Development ("ACCD"), pursuant to Rule 22(A)(5); Prehearing Conference Report and Order at 9, XI.(1). At the prehearing conference, the Appellants objected to the party status of Husky and ACCD, and Husky objected to the Appellants' standing and party status. Accordingly, the Chair asked the parties to brief all party status and standing objections prior to the issuance of rulings on these preliminary issues. The Chair specifically asked the parties to address in their memoranda Husky's party status pursuant to Procedural Rule 22(A)(6) or (7) and the Appellants' standing / party status pursuant to 29 V.S.A.  406(a) and Procedural Rule 22(A)(7). Prehearing Conference Report and Order at 3-6, V.(A), and 9-10, XI.(1), (4), (5), and (7). On December 16, 1998, the Appellants filed an Objection to Party Status of ACCD and Memorandum in Support of Dismissal of Husky's Encroachment Permit Application for Lack of Ripeness and Lack of Standing. On December 22, 1998, Husky filed an Objection to the Party Status of the Appellants and Motion to Dismiss the Appeal of the Encroachment Permit. On December 23, 1998, ACCD filed a copy of the Vermont Supreme Court's decision in Wilbur Parker, et al. v. Town of Milton, No. 97-422 (Dec. 18, 1998). On January 4, 1999, the Appellants filed a Reply Brief in response to Husky's December 22, 1998, filing. On January 5, 1999, Husky filed a Response to Appellants' Memorandum in Support of Dismissal of Husky's Encroachment Permit Application for Lack of Ripeness and Lack of Standing. On January 6, 1999, ANR filed a Reply Memorandum in response to the Appellant's January 4, 1999, Reply Memorandum. The Chair considered the parties' filings on the various standing and party status objections pursuant to Procedural Rule 21, and issued a Chair's Preliminary Ruling and a Memorandum on January 13, 1999. The Chair concluded that the Milton Appellants had the requisite standing, but that BCTC did not. He further ruled that Kenneth Smith and Kathleen Richland, two non-Milton Appellants might be able to allege facts supporting their standing, but they would need to offer additional facts in a supplemental filing by January 20, 1999, if they wished to have the Board rule in their favor on this question. The Chair further ordered that (1) the Milton Appellants had party status as of right pursuant to Procedural Rule 22(A)(7); (2) the BCTC lacked the requisite standing but was granted party status by permission pursuant to Procedural Rule 22(B); (3) Husky was entitled to party status as of right pursuant to 29 V.S.A.  406(c)(FN1) and Procedural Rule 22(A)(6); and (4) ACCD was granted party status of right pursuant to Procedural Rule 22(A)(5). The parties were given until January 20, 1999, to file any written objections to the Chair's Preliminary Ruling. On January 20, 1999, Husky filed a written Objection to the Chair's Preliminary Ruling on Standing and Party Status. On January 25, 1999, the Appellants filed a Responsive Memorandum, supporting the Chair's Preliminary Ruling. See Prehearing Conference Report and Order at 10, XI.(9) and (11). There were no requests for oral argument. The Appellants made no supplemental filing supporting the standing of Kenneth Smith and Kathleen Richland, nor did they object to the Chair's rulings concerning the "standing" and party status of Husky. Accordingly, by operation of law, Kenneth Smith and Kathleen Richland are deemed to lack standing, and Husky is deemed to be a party of right pursuant to 29 V.S.A.  406(c) and Procedural Rule 22(A)(6). In the Prehearing Conference Report and Order issued on December 14, 1998, the Chair established a filing schedule for briefing on preliminary issues other than standing and party status. Prehearing Conference Report and Order at 4-6, V.(B), and at 9-10, XI.(2), (10), (12). Those issues were described in the Prehearing Conference Report and Order at 6-7, V.(B), and are repeated as questions (5)-(7) in II., below. On January 18, 1999, the Appellants filed their Memorandum; on January 19, 1999, ANR filed its Memorandum; and on January 21, 1999, Husky filed a Motion to Dismiss and Legal Memorandum on Preliminary Issues. On January 25, 1999, the Appellants raised an objection to the late filing of Husky, but the issue of the timing and sequence of filing was resolved by a letter filed by Husky on January 29, 1999. There were no requests for oral argument. On February 2, 1999, the Board deliberated on the objections to the Chair's Preliminary Ruling and the other preliminary issues briefed by the parties. This decision memorializes the Board's rulings. II. PRELIMINARY ISSUES 1. Whether the Milton Appellants have standing to bring this appeal? 2. Whether the Milton Appellants should be granted party status pursuant to Procedural Rule 22(A)(7)? 3. Whether the BCTC should be granted party status by permission pursuant to Procedural Rule 22(B)? If not, whether the BCTC should be allowed to participate in some other capacity? 4. Whether ACCD should be granted party status of right pursuant to Procedural Rule 22(A)(5)? If not, whether the BCTC should be allowed to participate in some other capacity? 5. Whether the public good determination required by statute (29 V.S.A.  405) requires that the Project will be beneficial to the economic interests of working Vermonters. See 29 V.S.A.  403(6). 6. Whether or not the Water Resources Board (and other administrative agencies such as the DEC) have jurisdiction to determine the Project's compliance with the Public Trust Doctrine. 7. Whether the Appellants have failed to state a claim upon which relief can be granted. III. DISCUSSION A. Standing of the Milton Appellants In its filing of January 20, 1999, Husky asserts that the Chair erred in concluding that the Milton Appellants have standing to bring this appeal. Husky's Objection to Chair's Preliminary Ruling on Standing and Party Status at 4-8 (Jan. 20, 1999). "Standing" is a judicial doctrine developed and interpreted by federal and state courts. A party has "standing" if he or she has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Standing is a threshold jurisdictional issue which concerns the power of the courts to hear and decide an appeal on the merits. See generally, "Standing to sue" and definitions therein, Black's Law Dictionary (Sixth Edition 1990). The Vermont Supreme Court recently articulated the test for standing to be applied in a declaratory judgment action, and Husky urges the Board to adopt this standard in the present case. See Wilbur Parker v. Town of Milton, Dkt. No. 97-422 (Dec. 18, 1998) (hereinafter referred to as the "Parker opinion") The Parker opinion, while it is instructive, is not dispositive of what showing a citizen must make to demonstrate "standing" in an administrative appeal to the Board from a DEC-issued encroachment permit. For the purpose of determining standing in this administrative appeal, the Board relies on the specific language of 29 V.S.A.  406(a). That statute provides, in part: Any person aggrieved by the decision of the department [of environmental conservation] under section 405(c) of this title may appeal to the board within 10 days from the date of notice of action. (Emphasis added.) Whether a person is "aggrieved" is a mixed question of fact, law, and public policy. In applying the aggrievement standard of 29 V.S.A.  406(a), the Board has routinely considered an appellant's alleged interest(s) in the outcome of a proceeding in relation to the purpose of the statutory program under which the appealed permit was issued.(FN2) When additional guidance is needed, the Board also has looked to its own rule on party standing, Procedural Rule 22. Accordingly, at the prehearing conference, the Chair asked the parties to prepare argument on any challenge to the Appellants' standing based on an analysis of 29 V.S.A.  406(a) and Procedural Rule 22(A)(7). Prehearing Conference Report and Order at 3. Husky and the ANR each responded by attacking the sufficiency of the Appellants' averments, but they did not address the fundamental question of who can be a person "aggrieved" under 29 V.S.A. ch. 11. The underlying policy for the Management of Lakes and Ponds statute (29 V.S.A. ch. 11) is found at 29 V.S.A.  401. It states in relevant part: Lakes and ponds which are public waters of Vermont and the lands lying thereunder are a public trust, and it is the policy of the state that these waters and lands shall be managed to serve the public good, as defined by section 405 of this title, to the extent authorized by statute. The means for managing encroachments on public waters is set forth in 29 V.S.A.  405. Upon the filing of a permit application, 29 V.S.A.  405 requires the DEC to conduct an investigation, by providing public notice of the application, by requiring a period for the filing of public comment, and by directing that a public informational meeting be held on the application, if requested by the municipality in which the encroachment is to be located or by "25 or more persons in interest." 29 V.S.A.  405(a). The purpose of this investigation is to enable the DEC to determine whether the proposed encroachment will adversely affect the public good, taking into consideration "the effect of the proposed encroachment as well as cumulative effect of existing encroachments on water quality, fish and wildlife habitat, aquatic and shoreline vegetation, navigation and other recreational and natural surroundings and consistency with municipal shoreland zoning ordinances or any applicable state plans." 29 V.S.A.  405(b). After conducting a public hearing, the DEC is required to give written notice of the action taken in approving or denying the permit application to the applicant, the municipality in which the encroachment is to be located, the abutting property owners and "to other persons considered appropriate." 29 V.S.A.  405(c). In providing ample opportunity for local public participation under 29 V.S.A.  405, the General Assembly understood that citizens might well have an interest in the effects of a proposed encroachment on a body of public waters in their town and that their participation in the factfinding process is critical to a public good determination under 29 V.S.A.  406(b). This does not mean that others, not residing in the town in which a public body of waters is located, do not have an interest in those waters. Rather, it underscores the General Assembly's concern that those most likely to use and enjoy those waters be assured a voice in the permitting process. Arrowhead Mountain Lake is a body of public waters in the Town of Milton, providing a range of recreational and other uses. In the present case, the Milton Appellants attended and participated in the public informational meeting convened by the DEC preliminary to the issuance of the Encroachment Permit. See Husky's Objection to the Party Status of the Appellants and Motion to Dismiss the Appeal of the Encroachment Permit at 2 (Dec. 22, 1998). Moreover, the distribution list from the DEC reveals that the Milton Appellants were sent notice of the DEC's permit decision. Accordingly, the Milton Appellants were participants, and at least "appropriate" other persons, in the proceeding before the agency. See In re: Dean Leary, Docket No. MLP-94-08, Preliminary Order: Standing and Party Status Issues at 2 (Dec. 28, 1994) (Appellant's prior participation in permitting proceedings related to the encroachments by the same applicant, was one consideration in evaluating the Appellant's "interest" in the present proceeding.) The question, then, is what other factors must the Board consider in evaluating whether the Milton Appellants are "aggrieved" by the permit decision issued to Husky. As a prerequisite to establishing standing, the Board has not required a citizen appellant to be an be the owner of land along a particular river or lake. Instead, the Board has inquired whether the individual or individuals appealing the agency decision have asserted that they use or enjoy the public resource at issue, and whether their use and enjoyment may in some way be impaired if the proposed encroachment is allowed. In re: Dean Leary, Docket No. MLP-94-08, Preliminary Order: Standing and Party Status Issues at 2 (Dec. 28, 1994) (Appellant was "aggrieved" who asserted present and historical use of public waters at issue, who made allegations that his use and enjoyment of the public waters in question might be adversely affected if the encroachment permit was allowed to stand, and who had participated in previous permitting proceedings concerning the expansion of the project into public waters). The Milton Appellants have asserted that in their individual capacities they "make use of the Lake itself and/or have a direct and daily interest in its aesthetics." (FN3) Reply Memorandum at 4 (Jan. 4, 1999). Moreover, the Milton Appellants have specifically asserted that the proposed encroachment will have adverse aesthetic and environmental impacts cognizable under 29 V.S.A.  405(b) that will injure their use and enjoyment of those waters. Reply Memorandum at 4 (Jan. 4, 1999). In this regard, the Milton Appellants have asserted that: They are directly impacted by the bridge's "negative effect on the feeling of remoteness" admitted in DEC Findings  4 and its inconsistency with the natural surroundings admitted in DEC's Findings  13, and they dispute the DEC's conclusion that under the instant circumstances (t)he overall impact of the bridge is considered acceptable.' (DEC Findings  15 "Cumulative Impact."). Id. Based on the Appellants' representations, the Chair concluded that the Milton Appellants demonstrated a nexus between their use and enjoyment of the Lake and the alleged injury to that interest that might result if the Encroachment Permit were allowed to stand. The Board concurs with the Chair's conclusion, noting that the Milton Appellants have made a sufficient showing, albeit minimal, that the DEC decision may adversely affect their use and enjoyment of the Lake. Husky, nevertheless, argues that the Milton Appellants have failed to plead facts in their Notice of Appeal, demonstrating their specific and individualized "aggrievement." While Husky recognizes that the Board has historically been liberal in allowing pro se appellants to amend and supplement their pleadings, Husky argues that the Board should not extend this privilege to appellants represented by counsel and, therefore, the Appellants in this case. Husky's Objection to Chair's Preliminary Ruling on Standing and Party Status at 4, 6 (Jan. 20, 1999). Accordingly, Husky urges the Board to not consider the Appellants' January 4, 1999, Reply Memorandum as "supplementing" their Notice of Appeal, but even if it accepts this filing, Husky argues that the Milton Appellants have failed to aver sufficient facts demonstrating particularized interest(s), injury, and redressability to support their standing in this case. As the Chair noted in his Preliminary Ruling, the Board has generously allowed persons demonstrating some interest affected by the act or decision of the Commissioner of DEC to appeal that act or decision to the Board. The Board is not an "Article III" court and there are good prudential reasons why citizens of this State should not be denied the right to have a de novo hearing on the merits, when they can demonstrate some modicum of "aggrievement." One reason is that the Board has long recognized that public waters are held in trust for the People of Vermont, and where a government agency (in this case the DEC) has allegedly breached its duty to protect a public trust resource, a citizen with some interest in the waters at issue should be able to bring an appeal of that agency action to the Board. This is because local citizens are often the most affected by adverse impacts on swimming, fishing, boating and other public uses of a local body of public waters. Therefore, a liberal interpretation of standing under 29 V.S.A.  406(a) and permissive amendment of pleadings is appropriate and consistent with the highly public permitting process contemplated by 29 V.S.A. ch. 11 as a whole. Accordingly, the Board accepts the Appellants' Reply Memorandum of January 4, 1999, and Responsive Memorandum of January 25, 1999, as supplementing the averments in the Appellants' Notice of Appeal. See Re: Killington, Ltd., Docket No. WQC-97-10, Chair's Ruling on Party Standing at 1-3 (Feb. 23, 1998); In re: Appeal of Larivee, Docket No. CUD-92-09, Preliminary Order: Party Status (Mar. 16, 1993); and In re Cole, Docket No. WQ-92-13, Memorandum of Decision: Motion to Dismiss (Mar. 28, 1993) (all cases supporting a liberal approach to amendment of pleadings). While these averments are generalized, rather than specific to each Milton Appellant, the Board concludes that they set forth sufficient allegations to supporting standing in this administrative proceeding.(FN4) The following Milton Appellants, therefore, have standing to bring this appeal: Richard Prisco, Bryan Bouchard, Alan Cadorette, Jeffrey Towne, Kenneth Cassidy, Jeffrey Provost, Kevin Barron, Scott Carleton, Chris Bressette, and Michael Hathaway. B. Party Status of the Milton Appellants In its filing of January 20, 1999, Husky asserts that the Chair erred in concluding that the Milton Appellants are parties of right pursuant to Procedural Rule 22(A)(7). Husky's Objection to Chair's Preliminary Ruling on Standing and Party Status at 8-10 (Jan. 20, 1999). Husky asserts that the Chair did not address its arguments that: (1) the Appellants failed to allege a substantial interest on which to base a claim for party status; (2) the Appellants did not allege an injury or an interest of a type protected by the Management of Lakes and Ponds statute; and (3) the Appellants did not assert a right for which this proceeding affords an exclusive remedy. Id. at 9. Procedural Rule 22(A)(7) provides: Upon entering a timely appearance the following shall become parties to Board proceedings: 7. Any person demonstrating a substantial interest which may be adversely affected by the outcome of the proceeding where the proceeding affords the exclusive means by which that person can protect that interest and where the interest is not adequately represented by existing parties. The Chair concluded that the Milton Appellants were entitled to party status as of right pursuant to Procedural Rule 22(A)(7). Chair's Preliminary Ruling at 6 (Jan. 13, 1999). The Chair did so to clarify that the Milton Appellants have a right to be heard "on all issues identified in the Prehearing Conference Report and Order," even though certain of the original Appellants had been determined to lack standing. The Chair used Procedural Rule 22(A)(7) to merely provide guidance on the scope of the issues for which the Milton Appellants were entitled to be heard, not to substitute for the standing determination made under 29 V.S.A.  406(a). See In re: Killington Ltd., Docket No. MLP-97-09, Memorandum of Decision at 5, ftn. 4 (Feb. 10, 1998) ("When the right to appeal is statutorily granted the appellant need not also demonstrate standing under the [Procedural] Rules."). Accordingly, the Board concludes that the Milton Appellants are entitled to be heard on all issues identified in the Notice of Appeal, as clarified in the Prehearing Conference Report and Order of December 14, 1998, including issues related to the interpretation of the term "public good" and the application of the public trust doctrine. C. Party Status of BCTC In its filing of January 20, 1999, Husky asserts that the Chair erred in granting the BCCT party status pursuant to Procedural Rule 22(B). Husky's Objection to Chair's Preliminary Ruling on Standing and Party Status at 10-11 (Jan. 20, 1999). Husky argues that the union has not demonstrated a "substantial interest in the outcome of this proceeding as it relates to the interpretation of the public good' and Husky's right to the Encroachment Permit." Id. at 10. The Board agrees with Husky that BCTC does not qualify for party status by permission. Procedural Rule 22(B)(3) allows the Board, in its discretion, to permit intervention in a proceeding when "the applicant demonstrates a substantial interest which may be affected by the outcome of the proceeding." In exercising its discretion, the Board is required to consider: (1) whether the applicant's interest will be adequately protected by other parties; (2) whether alternative means exist by which the applicant can protect his interest; and (3) whether intervention will unduly delay the proceeding or prejudice the interest of existing parties or of the public. The Chair concluded that while BCTC had failed to demonstrate the requisite interest to support standing, it should nonetheless be allowed to participate as a permissive party in this proceeding, and thereby be "directed to coordinate and facilitate the presentation of evidence and argument with the other Appellants," pursuant to Procedural Rule 22(B)(4) thereby expediting the Board's review process. Chair's Preliminary Ruling at 6-7 (Jan. 13, 1999). This ruling, however, does not address the considerations identified in procedural Rule 22(B)(3). The Board concludes that for the same reasons BCTC was denied standing by the Chair, the union also does not have a "substantial interest" which may be affected by the outcome of this proceeding. See Chair's Preliminary Ruling at 6 (Jan. 13, 1999). Moreover, BCTC's inter- est in the issues raised in the joint Notice of Appeal, as clarified in the Prehearing Conference Report and Order, will be adequately represented by the Milton Appellants. Procedural Rule 22(B)(3), consideration 1.(FN5) Nevertheless, the Board concludes that BCTC's briefing of legal issues before the Board in this appeal may prove helpful in finally settling certain questions regarding the meaning of the "public good" and application of the public trust doctrine. Therefore, in accordance with past practice, the Board will allow BCTC to participate as an amicus curiae, subject to the briefing deadlines applicable to the Milton Appellants. See In re: Dean Leary, Preliminary Order: VBMA Motion for leave to participate as Amicus Curiae (Oct. 16, 1995); In re: Vermont Marble Company (OMYA), Docket No. WQ-92-12, Preliminary Order: Amicus Curiae Requests (July 1, 1993). See also, Procedural Rule 25 (Amicus Curiae) (eff. Feb. 22, 1999).(FN6) D. Party Status of ACCD At the prehearing conference, and again in their objection to the Chair's ruling in the Prehearing Conference Report and Order, the Appellants questioned the grant of party status to the ACCD pursuant to Procedural Rule 22(A)(5). Appellants' Objection to Party Status of ACCD (Dec. 16, 1998). This issue was preserved for Board review in the Chair's Preliminary Ruling at 9 (Jan. 13, 1999). The Board has reviewed the ACCD's filing and agrees with the Milton Appellants that the ACCD has failed to articulate a cognizable basis for the grant of party status as of right. Procedural Rule 22(A)(5) requires that any State agency other than the Agency of Natural Resources, must demonstrate "a substantial interest which may be adversely affected by the outcome of the proceeding." The only filing made by the ACCD was a Notice of Appearance submitted by its counsel to the Board on November 19, 1998. That filing contained the following statement in support of its party status request: The Agency of Commerce is substantially interested in this appeal because it concerns issues related to how the necessary transportation infrastructure will be permitted and built to serve one of Vermont's most significant new economic development projects. The filing provided no explanation of what "substantial interest" the ACCD had in this matter independent of any interest that might be represented by the ANR, which is a party of right pursuant to Procedural Rule 22(A)(4). Without some allegation that the ACCD has provided financial assistance for this Project or has some other substantial interest warranting its separate party status in this matter, the Board declines to determine that it has party status of right. However, because the ACCD may be able to brief issues related to the genesis of this Project and why it should be granted a permit under 29 V.S.A.  405, the Board will permit the ACCD to participate in this proceeding as an amicus curiae, provided that it complies with the briefing schedule applicable to the ANR. E. Public Good Determination (29 V.S.A.  402(6) and 405) The Milton Appellants have asserted that a public good determination under 29 V.S.A.  405 requires consideration of whether the Project will be beneficial to the economic interest of working Vermonters. Notice of Appeal at 3-4 (Nov. 3, 1998) and Prehearing Conference Report and Order at 5-6 (Dec. 14, 1998). In order to determine what a "public good" determination entails, it is necessary to look at the particular text of the statutory program at issue -- the Management of Lakes and Ponds statute, 29 V.S.A. ch. 11. The definitions section of that statute, 29 V.S.A.  402(6), states that the " Public good' means that which shall be for the greatest benefit of the people of the state of Vermont." The Milton Appellants argue that this definition must be read in pari materia with the legislative finding set forth in 10 V.S.A.  211, such that the Project will be found "necessary to alleviate and prevent unemployment and underemployment and to raise the per capita income within this state. . . ." Because the proposed bridge is to serve the build-out of the Husky industrial campus, the Milton Appellants argue that the impact of that build-out on underemployment and per capita income must be considered in deciding whether the Project shall be for the greatest benefit for the people of the state. Notice of Appeal at 3 (Nov. 3, 1998) and Supplemental Legal Memorandum at 1-3 (Jan. 18, 1999). In response to this argument, the ANR and Husky persuasively argue that the public good determination under 29 V.S.A.  405 does not entail consideration of the economic impacts of the project, but rather, by the very terms of that section, as well as the purpose of 29 V.S.A. ch.11, review of the Project is restricted to consideration of environmental, not economic, impacts. ANR Memorandum on Preliminary Issues (Jan. 19, 1999) and Husky's Motion to Dismiss and Legal Memorandum on Preliminary Issues at 3-4 (Jan 19, 1999). The Board agrees with the ANR and Husky that the public good determination required by 29 V.S.A. ch. 11 does not take into consideration the economic impacts of the proposed Project, either directly or through incidental benefits or costs resulting from the encroachment's approval. Title 29 V.S.A.  405(b) specifically sets forth those factors the DEC, and the Board on appeal, must consider in determining whether a proposed encroachment will adversely affect the public good and these are all specific environmental factors. See, supra, at 6 (listing of the specific statutory factors to be considered in a public good investigation under 29 V.S.A.  405(b)). The DEC and the Board are limited to making a determination based solely on these statutorily mandated factors. Title 10 V.S.A.  211 is part of a legislative finding intended to provide guidance to the Vermont Economic Development Authority, in providing financial assistance to Vermont businesses. It has no bearing whatsoever on DEC or Board review of proposed encroachments on public waters. The powers and duties of the DEC and the Board under 29 V.S.A. ch. 11 pertain exclusively to the management and stewardship of the environmental resources of Vermont. Although the term, "public good," is broadly defined in 10 V.S.A.  402(6), it cannot and does not, either expressly or impliedly, mandate consideration of economic factors in evaluating proposed encroachments on public waters. Therefore, the Appellants' argument pertaining to improving the economic interests of working Vermonters is irrelevant to the determination of the public good under 29 V.S.A.  405(b). Accordingly, the Board concludes that: (1) a public good determination under 29 V.S.A.  405 does not require consideration of whether the Project will be beneficial to the economic interests of working Vermonters; and (2) the Milton Appellants have failed to state a claim upon which relief can be granted by the Board. F. Board's Jurisdiction to Determine Project Compliance with the Public Trust Doctrine The Milton Appellants have asserted that administrative agencies, such as the DEC and the Board, lack any authority to determine a proposed encroachment's compliance with the public trust doctrine. Notice of Appeal 4 (Nov. 3, 1998) and Prehearing Conference Report and Order at 6 (Dec. 14, 1998). They argue that the DEC and the Board may only grant an encroachment permit based on whether a proposed encroachment will comply with the public good criteria under 29 V.S.A.  405. They further argue that only the General Assembly may determine whether a proposed encroachment complies with the public trust doctrine; but any such determination by the DEC or Board is ultra vires. In support of its argument, the Appellants cite State and City of Burlington v. Central Vermont Railway, 153 Vt. 337 (1989) and various special acts of the General Assembly declaring what uses are public uses of public trust lands and waters on the Burlington waterfront. Notice of Appeal at 4 (Nov. 3, 1998) and Supplemental Legal Memorandum at 4-6 (Jan. 18, 1999). In response to this argument, Husky asserts that the Appellants are making an impermissible attack at the Board level on the constitutional validity of the Lakes and Ponds Management statute. Husky further asserts that the Board has no authority to adjudicate such an issue and therefore, the Appellants have failed to state a claim upon which the Board can grant relief. Therefore, the Appellants assert that this claim should be dismissed. Husky's Motion to Dismiss and Legal Memorandum on Preliminary Issues at 4-6 (Jan 19, 1999). While the Board agrees with Husky that it has no authority to rule on the constitutionality of 29 V.S.A. ch. 11, it can interpret its provisions so as to fulfill its charge to regulate proposed encroachments on public waters. In this regard, the Board has historically interpreted narrowly its authority to make public trust determinations. Rather than declare whether a proposed encroachment is a public use, the Board has construed its authority under 29 V.S.A. ch. 11 to include a determination whether the proposed encroachment serves a public purpose and whether the proposed encroachment will have a detrimental or beneficial effect on known public trust uses. In re: Dean Leary, Docket No. MLP-96-04, Findings of Fact, Conclusions of Law, and Order at 20-25 (Aug. 1, 1997); In re Dean Leary, Docket No. MLP-94-08, Memorandum of Decision: Application of the Public Trust Doctrine (Apr. 13, 1995); In re: William Point Yacht Club, No. S213-89CnC, Opinion and Order at 5 (Apr. 16, 1990). In other words, the Board has avoided the very determination which the Appellants condemn. Moreover, the Board has conducted such a public trust analysis only after a proposed encroachment has received a positive public good determination under 29 V.S.A.  405. In re Dean Leary, Docket No. MLP-96-04, Findings of Fact, Conclusions of Law, and order at 13; In re Kevin Rose and the Champlain Kayak Club, Docket No. MLP-96-01, Findings of Fact, Conclusions of Law, and Order at 11 (Nov. 7, 1996). Therefore, if a proposed encroachment were determined to adversely affect the public good, no public trust determination would be made. A permit simply would be denied. The Appellants have provided no authority persuading the Board that it lacks the authority to conduct such an analysis. Therefore, the Board sees no reason to abandon the approach to permit application review enunciated in In re: Dean Leary, Docket No. MLP-96-04, Findings of Fact, Conclusions of Law, and Order at 20-25 (Aug. 1, 1997). Accordingly, the Board concludes that: (1) it has authority under 29 V.S.A. ch 11 to determine whether a proposed encroachment has a public purpose and whether it will have a detrimental or beneficial effect on public trust uses; and (2) to the extent that the Milton Appellants have asked the Board to rule on the constitutionality of the delegation of authority under 29 V.S.A. ch. 11, they have failed to state a claim upon which the Board can grant relief. V. ORDER 1. The Milton Appellants have standing to bring this appeal. 2. The BCTC and the ACCD are denied party status. They are permitted, however, to participate in this proceeding as amicus curiae. The BCTC shall comply with all filing deadlines for briefs, memoranda, and proposed findings of fact and conclusions of law established for the Milton Appellants. The ACCD shall comply with all filing deadlines for briefs, memoranda, and proposed findings of fact and conclusions of law established for the ANR. 3. Husky's Motion to Dismiss is granted in part and denied in part. a. The public good determination required by statute (29 V.S.A.  405) does not require a determination that the Project will be beneficial to the economic interests of working Vermonters. The Milton Appellants have failed to state a claim upon which the Board can grant relief. b. The Board has jurisdiction to determine the Project's compliance with the Public Trust Doctrine as discussed above in III.(F). To the extent that the Milton Appellants have asked the Board to rule on the constitutionality of 29 V.S.A. ch. 11, they have failed to state a claim upon which the Board can grant relief. c. The remaining issue before the Board is whether the Project will adversely affect the public good, pursuant to 29 V.S.A.  405(b), and whether it complies with the Public Trust Doctrine. In order to expedite a hearing in this matter, the Chair will convene a second prehearing conference for the purposes stated in Item 14 of the Prehearing Conference Report and Order at 10 (Dec. 14, 1998). Dated at Montpelier, Vermont, this 22nd day of February, 1999. WATER RESOURCES BOARD /s/ William Boyd Davies William Boyd Davies, Chair Concurring: Ruth Einstein Gerry Gossens Gail Osherenko (FN1) This statutory section was incorrectly cited in the Chair's Preliminary Ruling at 29 V.S.A.  408(c). The correct citation is 19 V.S.A.  406(c). (FN2) The Board has done the same in applying the "aggrievement" standard in appeals from actions or decisions of the Secretary of ANR under 10 V.S.A. 1269. (FN3) The Appellant in the Leary case asserted that he used the subject body of public waters for swimming, fishing, fowling, and other recreational uses. In re: Dean Leary, Docket No. MLP-94-08, Preliminary Order: Standing and Party Status Issues at 4 (Dec. 28, 1994). The Milton Appellants assert that they make "actual" use of the water of the Arrowhead Mountain Lake, consistent with the uses articulated in the Leary case. Appellants' Responsive Memorandum (Jan. 25, 1999). (FN4) The Board notes that neither Procedural Rule 18, governing the commencement of de novo or appellate proceedings before the Board, nor any other Procedural Rule, requires the filing of affidavits or other particularized averments with a Notice of Appeal. (FN5) The Supreme Court's recent Parker opinion suggests that a party in the shoes of the union may lack standing to obtain judicial review of private encroachments on public waters through a declaratory judgment. Therefore, with respect to consideration (2) of Procedural Rule 22(B)(3), there is some doubt whether BCTC has alternative judicial means at its disposal to protect its interest in seeing that working Vermonters benefit economically from the proposed Project, but it may have recourse through legislation. (FN6) Recent amendments to the Board's Rules of Procedure, which take effect today, codify the Board's practice of granting amicus curiae status.