In re: Appeal of George Carpenter, Jr., Remand Order, SAP-99-06 (Dec. 14, 1999)



State of Vermont

WATER RESOURCES BOARD

REMAND ORDER

RE: George Carpenter, Jr. Docket Number: SAP-99-06

3174 North Road (Appeal of ANR Permit #SA-7-0614)

Waitsfield, VT 05673



Statutory Authority:

10 V.S.A. 1024

I. BACKGROUND

On August 9, 1999, the Water Resources Board ("Board") received a letter characterized as an appeal, pertaining to ANR's issuance of Stream Alteration Permit ("SAP") #SA-7-0614 ("Permit"). The appeal was filed by George Carpenter, Jr. ("Appellant") and the filing of such appeal stays the effectiveness of the Permit pursuant to 10 V.S.A. 1024(a). The permit applicants are Doug and Sharon Turner of Waitsfield ("Applicants"). The Applicants seek to excavate approximately 2500 cubic yards of gravel from an exposed deposition located on the Mad River in the Town of Waitsfield in conjunction with an effort to stabilize a stream bank abutting their property. On August 31, 1999, Board Chair Gerry Gossens, pursuant to Procedural Rule 28, convened a prehearing conference in Montpelier, Vermont, in the above-captioned matter. The following persons participated:

Doug Turner, Permit Applicant, pro se;

George Carpenter, Jr., Appellant, pro se (via telephone); and

Agency of Natural Resources ("ANR") by Jon Groveman, Esq.

At the conference, the parties agreed that there were a number of preliminary issues to be addressed in this matter prior to scheduling the filing of pre-filed testimony, or conducting a site visit and hearing. The preliminary issues that were identified by the parties and the Board's Chair, as well as the deadlines established by the Chair, were as follows:

1. Appellant was required not later than September 23, 1999 to identify the specific statute, and statutory sections pursuant to which this appeal has been filed.

2. Appellant was required, not later than September 23, 1999 to file a written statement of the issues with the Board and all other participants to enable the applicant and the ANR to determine the specific grounds upon which the Appellant seeks to appeal.

3. By agreement of the parties, Applicant was to supplement the notice of issuance of Stream Alteration Permit #SA-7-0614 that had previously been provided on or before Tuesday, September 21, 1999 so that both George Carpenter, Sr. and Elwin Neill, Jr. received actual notice of the issuance of the Permit.(1)

4. Applicant was required to file a statement with the Board and all parties not later than 4:30 p.m. on Thursday, September 23, 1999 explaining the particulars of service upon the above-named individuals.

The Board received only those filings identified in Paragraphs 3 and 4, above in a timely manner; i.e. only the ones which were required to be filed by the Applicant. All parties were aware of the requirement to file the above-noted filings and the prehearing conference report and order specifically provided that:

Any participant objecting to the manner in which preliminary issues are stated in this Order, or to any other provisions of this Prehearing Conference Report and Order, shall file such objection not later than 4:30 p.m. on Monday, September 20, 1999.No such objections were filed. Likewise, no party sought additional time in which to prepare such filings.

As a consequence of Appellant's failure to file the required statement of statutory authority and statement of issues, on October 5, 1999, ANR and Applicants each filed a Motion to Dismiss. While both the Applicants and ANR cite to Appellant's failure to comply with the requirements of the statute, and the prehearing order, ANR also alleges that the Appellant lacks standing to pursue the appeal.

Water Resources Board Rule of Procedure 24 provides that "Prior to any such dismissal, the Board shall provide an opportunity for oral argument." Accordingly, the Board convened oral argument on the pending Motions to Dismiss at the Board's regularly scheduled Board meeting on October 28, 1999. The Board allocated 30 minutes of its meeting day for the presentation of argument and immediately thereafter conducted deliberations with respect to such argument.

At oral argument, the Appellant repeated his previously noted concerns regarding his inability to participate in the permit proceeding, to the extent that there was a proceeding, before ANR. The Board Chair noted, and the parties appeared to agree, that the types of concerns raised by the Appellant are most appropriately addressed in the initial application process before ANR. Without commenting on the legitimacy of any of the Appellant's concerns, the Board asked ANR counsel to confirm that notice of the application had been provided in a manner that allowed the Appellant to meaningfully participate at the ANR level prior to the issuance of the permit. ANR counsel was unable to confirm such opportunity at oral argument. Accordingly, the Board chair sought an affidavit or some form of affirmation from ANR that notice was provided to the Appellant in the ordinary course and that Appellant had an opportunity to register his concerns and objections with ANR prior to the issuance of the permit. The Chair requested that such affidavit be filed and the Board declined to take action on the pending Motion to Dismiss prior to reviewing the ANR's filing relative to Appellant's opportunity to comment on the permit application.

On November 16, 1999, ANR filed a Motion to Remand this matter back to ANR for further consideration. The Motion for Remand superseded ANR's previously filed Motion to Dismiss. Contained within ANR's Motion for Remand was an acknowledgment by ANR that appropriate notice and an opportunity to comment were not afforded to Mr. Carpenter. As explained in the Motion for Remand, ANR now seeks to correct that oversight by reopening the permit application process. The Board deliberated with respect to ANR's Motion for Remand at its regularly scheduled Board meeting on November 16, 1999 and directed staff to prepare this Order. This matter is now ready for a decision.

II. DISCUSSION

In an effort to act quickly upon the pending application for a stream alteration permit, ANR's actions foreclosed the opportunity of any party entitled by statute to receive notice of the permit application to meaningfully participate in the permit application process. Were such an expedited review process allowed, those entitled by statute to receive notice would necessarily be required to appeal the issuance or denial of a permit to the Water Resources Board simply to ensure that a hearing was conducted on the application or to allow a meaningful opportunity to comment on the application. We think such a result is inappropriate and inconsistent with the respective functions of ANR and the Board, the former having technical expertise and being charged with administering the stream alteration permit in the first instance and the latter being a body with limited technical expertise and having appellate jurisdiction. For the purposes of this case, the Board will remand this application with instructions to ANR to ensure that the Appellant may participate and/or file objections prior to ANR's action on the permit application.

As a matter of public policy, it appears that a failure to provide any meaningful opportunity for those entitled to receive notice to actually participate in the decision on the stream alteration permit application, renders the notice requirement of 10 V.S.A. 1022 meaningless - or at best, purely informational. Were the legislature's intent to have the initial hearing on an application before the Water Resources Board, which we find highly unlikely, the legislature would not have set forth the detailed notice requirements in 10 V.S.A. 1022 but would have simply relied on the provisions of 1023(b) (which are, with respect to adjacent landowners, identical to the provisions of 1022), to notify those potentially affected by the proposed alteration so that they could participate by appealing and requesting a hearing to provide comments or objections to the Board.

While the stream alteration statute makes no mention of a hearing before ANR, and where it instead compels ANR to "conduct an investigation," we do not think that the statute necessarily precludes the solicitation of comments and/or objections from those entitled to receive notice of a proposed stream alteration. The stream alteration statute specifically provides that "a conformed copy [of the application] shall be simultaneously filed with the town clerk of the town in which the proposed alteration is located, and mailed to each owner of property that abuts or is opposite the land where the alteration is to take place." 10 V.S.A. 1022. We conclude that those statutorily entitled to notice prior to issuance of the permit, should at least be afforded an opportunity to file objections to the application before a permit is issued. The Board does not decide here whether in the absence of a legislative requirement that ANR conduct a hearing on a stream alteration permit such application process is a contested case under the definition set forth in the APA. See 3 V.S.A. 801(2). However, it appears that the stream alteration permit application process at ANR may meet the definition of a contested case under the APA because the application is for a permit and because such a permit, if issued, determines legal rights, duties, or privileges of a permittee.

III. ORDER

1. This matter is hereby remanded to ANR with instructions to re-open the application for #SA-7-0614. Prior to issuance of any new or revised permit, any party, including Mr. Carpenter, shall be provided with an opportunity to comment on the application, and shall, as appropriate, be entitled to file objections to the permit application.

2. Stream Alteration Permit #SA-7-0614 is void.

3. Jurisdiction over this matter is hereby returned to ANR.

Dated at Montpelier, Vermont, this 14th day of December, 1999.



VERMONT WATER RESOURCES BOARD



/s/ Gerry Gossens

_______________________________

Gerry Gossens, Chair



Concurring:

David J. Blythe

John D.E. Roberts













1. Appellant does not dispute that a copy of the Permit was provided to the residence of Mr. Carpenter, Jr. and Mr. Neill, Sr. but he objects to the failure to provide a separate actual notice to his father - George Carpenter, Sr. as well as Mr. Elwin Neill, Jr.