In re: Appeal of Paul Dannenberg, WQ-99-07, Findings of Fact, Conclusions of Law and Order ( Dec. 29, 2000)
State of Vermont
WATER RESOURCES BOARD
RE: Paul Dannenberg Docket Number: WQ-99-07 (Appeal of ANR Permit Re: Application #1999-C01)
P.O. Box 187
Huntington, VT 05462
Statutory Authority:
10 V.S.A. §1269
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
This decision pertains to an appeal of an Aquatic Nuisance Control Permit issued by the Secretary of the Agency of Natural Resources ("ANR") pursuant to 10 V.S.A. § 1263a. For the reasons stated below, the Water Resources Board ("Board") dismisses this appeal, thereby affirming the Secretary's decision. Jurisdiction over this matter is returned to the ANR.
I. BACKGROUND
On October 18, 2000, the Secretary of ANR through his designee, the Director of the Water Quality Division, Department of Environmental Conservation, issued an Aquatic Nuisance Control Permit granting Application No. 1999-C01 ("Permit") to James R. Martin of Huntington, Vermont ("Permittee"). The Permit authorizes Permittee to use Aquashade®, a U.S. EPA-registered aquatic pesticide, to control nuisance aquatic plants and algae in two private ponds located on lands of the Permittee in Huntington.
On November 17, 1999, Paul Dannenberg ("Mr. Dannenberg"), who owns real property adjacent to the Martin property, appealed the Permit to the Board pursuant to 10 V.S.A. §1269. Mr. Dannenberg maintained that he is aggrieved by the issuance of the Permit and in support of that assertion stated that, among other things, he owns a shallow spring (well) within 300± feet of the larger of the two ponds which may be affected Permittee's use of Aquashade®.
On December 17, 1999, then Board Chair, Gerry Gossens, convened an initial prehearing conference in the above-referenced matter pursuant to Water Resources Board Procedural Rule ("WRB") 28. Participating in the prehearing conference were the Permittee, Mr. Dannenberg, and the ANR by Jon Groveman, Esq. and Ann Bove. No other person either appeared at the conference or filed a written request to participate in this proceeding.
At the prehearing conference, Mr. Dannenberg filed a written request for party status and the participants briefly described the issues in this proceeding. Participants observed that there were several preliminary issues that should be addressed before scheduling a hearing on the merits. The preliminary issues identified by the participants and Board staff included the threshold question of Mr. Dannenberg's party standing, the appropriate scope of the appeal and other matters as required to properly frame the issues. Participants also agreed to attempt to resolve this matter informally. The prehearing conference was concluded prior to a full discussion of all issues and without establishing a definitive schedule for the prefiling of direct testimony. Rather, Chair Gossens requested that the parties pursue a facilitated or mediated discussion during the early part of January 2000 in an attempt to resolve all or some of the disputes giving rise to the appeal. Chair Gossens set forth a deadline of January 20, 2000, for the filing of a status report on any progress made toward settlement of this controversy.
As of January 20, 2000, no status report was filed. On February 3, 2000, however, Mr. Dannenberg filed a Status Report in which he stated that "[t]wo parties in this matter agree to a request for a thirty (30) day extension to attempt to mediate this matter." The reasons provided for the extension request were the illness of Mr. Dannenberg and the unavailability of the mediator. The Permittee was not contacted regarding the request, and accordingly, did not participate in making of the request.
On February 4, 2000, Permittee filed an Opposition to Mr. Dannenberg's Request of an Extension ("Opposition Letter"). In the Opposition Letter, the Permittee confirmed that as of February 3, 2000, no mediation had occurred. The Permittee contended that the appeal was without merit for various reasons, some of which are germane to the Board's jurisdiction and some of which appear to stem from matters unrelated to the Permit in question. In any event, the Permittee sought no relief from the Chair other than to deny the pending request for continuance of thirty days.
On February 14, 2000, Mr. Dannenberg filed a Reply to Permittee's Opposition Letter, requesting that the deadline for an attempt to mediate this matter be extended to February 21, 2000, again citing illness and scheduling issues as the reasons for the delay. Based on representations made in Mr. Dannenberg's letter, the mediation discussed at the initial prehearing conference on December 17, 1999 was scheduled to be held on February 10, 2000.
On February 14, 2000, shortly after what the Board understands to have been an unsuccessful attempt at mediation, the Permittee repeated his objections to the merit of Mr. Dannenberg's appeal, this time in a Motion to Dismiss the Dannenberg Appeal for Lack of Standing ("Motion to Dismiss"). The Motion to Dismiss concerned only the issue of whether Mr. Dannenberg is a person aggrieved pursuant to 10 V.S.A. §1269.
By an Order dated February 24, 2000, Chair Gossens granted additional time for informal resolution of the appeal but required the parties to brief their positions relative to the Motion to Dismiss prior to taking up the standing issue at oral argument. Mr. Dannenberg and the ANR filed written responses to the Permittee's Motion to Dismiss on February 24 and March 8, 2000, respectively.
On March 14, 2000, the Board heard oral argument on the limited question of Mr. Dannenberg's standing to file the appeal. In a Memorandum of Decision on Motion to Dismiss and Scheduling Order dated April 20, 2000 ("April 20 Order"), the Board concluded that Mr. Dannenberg had met the relatively modest threshold for establishing standing to appeal based upon what was known to the Board at the time of the hearing. The Board was careful to qualify the conferral of standing in the following manner:
IV. B. Paul Dannenberg is hereby granted party status pursuant to WBR 25 subject to any party making a subsequent showing that the Permittee's application of Aquashade® could have no effect upon his water supply.
The April 20 Order also required Mr. Dannenberg to clarify the legal issues in dispute by filing a Statement of Legal Issues. He filed such a Statement of Legal Issues on May 2, 2000.
On May 5, 2000, Permittee filed a response to the Appellant's Statement of Legal Issues objecting to the lack of specificity contained therein. In addition, on May 5, 2000, Permittee filed a Motion to Dismiss because Mr. Dannenberg allegedly had prevented the Permittee to conduct a site visit of the Dannenberg water supply (spring) ("Second Motion to Dismiss"). Therein, the Permittee described letters dated April 26, 2000 and May 3, 2000, through which he had unsuccessfully sought permission to access the Dannenberg spring (well). The Permittee asked the Board to dismiss the appeal on the basis that without the requisite site investigation, he could not respond to the Board's April 20, 2000 Order; to wit: whether there exists a hydrological nexus between the Permittee's ponds and the Dannenberg's water supply well such that there could be any impact from the application of Aquashade® upon the water supply.
On May 12, 2000, Mr. Dannenberg filed a Reply to Permittee's Second Motion to Dismiss and Response to Statement of Legal Issues ("Reply to Second Motion to Dismiss"). In regard to the site visit issue, Mr. Dannenberg stated that "No site visit has been ordered by the Board." He acknowledged that the Board anticipated a site visit and noted that the Board planned to discuss such a visit at a second prehearing conference scheduled for May 18, 2000.
The Board's Associate General Counsel, Joseph Minadeo, convened the second prehearing conference on May 18, 2000. Mr. Dannenberg, the Permittee, and ANR participated. The Permittee and ANR both argued that the access issue was a critical component of a fair resolution of this appeal. The Permittee reiterated his pending request that the appeal be dismissed.
A draft Prehearing Conference Report and Order prepared pursuant to WBR 28(C) was hand-delivered to the parties on June 1, 2000.
The Board's Associate Counsel convened a site visit of the Permittee's and Mr. Dannenberg's properties on June 1, 2000.(1) In general, the limitations proposed by Mr. Dannenberg regarding site evaluation of his property were adhered to and, as a consequence, the Permittee objected to these limitations.
Nevertheless, a site inspection was performed for the Permittee by hydrogeologist, Craig Heindel of Heindel and Noyes, as well as by Mr. Heindel's assistant, John Medenweld, Surveying Technician.
Comments relative to the Draft Prehearing Conference and Order were filed by the Permittee on June 5, 2000 and by Mr. Dannenberg on June 8, 2000. ANR filed no comments.(2)
On June 14, 2000, Permittee renewed his pending Motion to Dismiss by filing a Motion to Deny Mr. Dannenberg Party Status pursuant to the April 20, 2000 Order of the Water Resources Board ("Third Motion to Dismiss"). Therein, the Permittee cited the language contained on page 5 of this decision. In support of the Third Motion to Dismiss, the Permittee appended a report prepared by Heindel and Noyes summarizing the firm's site visit findings and analyses, as well as a detailed survey of the Permittee's two Ponds containing relevant elevations, flow characteristics, and other parameters attendant to the site ("Heindel and Noyes Report").
A final Prehearing Conference Report and Order was issued on June 27, 2000. This report and order incorporated the comments that were filed by parties. Among other things, the Prehearing Conference Report and Order contained a section titled "Scheduling" in which the Chair's report memorialized certain key deadlines that had already passed. It established certain other deadlines and identified August 8, 2000 as the likely date for a hearing and Board site visit relative to this matter.
The most critical provisions of the Prehearing Conference Report and Order, and the only ones repeated herein, pertained to the issue of dismissal.
Referencing the Board's April 20 Order, the Prehearing Conference Report and Order states at pages 5-6:
The Board specifically retained as a pending issue the question of whether there is a hydrological nexus between Permittee's ponds and the Dannenberg water supply well when it granted Mr. Dannenberg party status pursuant to WBR 25 "subject to any party making a subsequent showing that the Permittee's application of Aquashade could have no effect upon [Mr. Dannenberg's] water supply."
* * *
. . . should any party provide sufficient evidence to support a conclusion that [the Permittee's] application of Aquashade® could not affect Mr. Dannenberg's water supply, this matter may be dismissed prior to a full hearing on the merits.
The Prehearing Conference Report and Order also established deadlines for filings relative to the pending Motion to Dismiss. Specifically, Mr. Dannenberg and ANR were provided until July 14, 2000, to respond to the Heindel and Noyes Report filed by the Permittee on June 14, 2000.(3)
On July 11, 2000, ANR filed a Memorandum, dated July 6, 2000, from
its hydrogeologist Dennis Nealon to Jon Groveman and Ann Bove ("Nealon Memorandum"). Dennis Nealon had conducted his own site investigation of the subject properties as well as reviewed the Heindel and Noyes Report. The Nealon Memorandum concurred with the findings and conclusions contained in the Heindel and Noyes Report.
On July 14, 2000, Mr. Dannenberg filed a Reply to Permittee's Third Motion to Dismiss and Petition for Parties [sic] Status ("July 14 Motion"). The July 14 Motion raised arguments designed to undermine the credibility and validity of the Heindel and Noyes report and establish a new basis for Mr. Dannenberg's party status visa-vis a "substantial interest" in the protection of the water quality of Higley Brook. Mr. Dannenberg, however, filed no independent report from a qualified expert in rebuttal to the findings and conclusions contained in the Heindel and Noyes Report.
On July 20, 2000, the Permittee filed a Rebuttal to Mr. Dannenberg's Opposition [to] the Motion to Dismiss and Objection to Mr. Dannenberg's Untimely Petition for Party Status ("Reply to July 14 Motion"). Therein, the Permittee objected to the expansion of the legal issues to include alleged impacts to Higley Brook and opposed Mr. Dannenberg's new arguments in support of party status. In support of the Reply to July 14 Motion, the Permittee attached an Addendum to the Heindel and Noyes Report, prepared by Craig Heindel and dated July 18, 2000 ("Addendum").
On August 4, 2000, Mr. Dannenberg filed another Motion to Amend ("August 4 Motion"). He essentially repeated the claims stated in the July 14 Motion, providing further argument on why the amendment of his party status petition should be deemed timely.
The Board convened oral argument and conducted a site visit on August 8, 2000 in Richmond, Vermont and Huntington, Vermont, respectively. The oral argument was limited to the question of whether there exists a hydrological nexus between the Permittee's ponds and Dannenberg's water supply. The following persons participated:
Paul Dannenberg, Appellant
James Martin, Permittee
ANR by Jon Groveman, Esq., and Dennis Nealon and Ann Bove.
At the oral argument, the Permittee supplemented his previously filed material with a Memorandum of Law that Relates to No Hydrological Nexus Between Permittee's Ponds and the Dannenberg Water-Supply Well and a Memorandum of Law that Relates to Mr. Dannenberg's Untimely Filing of his new "Petition for Party Status" and Opposition to his Subsequently Filed Motion to Amend (collectively, "August 8 Memorandum").
The Board deliberated on August 8 and December 29, 2000. This matter is now ready for decision.
To the extent that any party's proposed findings of fact and/or conclusions of law are included below, they are granted; otherwise, they are denied. See Secretary, Agency of Natural Resources v. Upper Valley Regional Landfill Corporation, 167 VT. 228, 242-243 (1997); Petition of Village of Hardwick Electric Department, 143 VT. 437, 445 (1983). Since the Board, after conducting its own site visit of the Permittee's and Mr. Dannenberg's properties and hearing argument from the parties, agrees with the findings and conclusions contained in the Heindel and Noyes Report, the Addendum, and the Nealon Memorandum, the Board herein adopts these findings and conclusions as Board findings of fact. The Board also specifically incorporates the map prepared by Heindel and Noyes, entitled "Martin Ponds," Project No. 00329, dated June 12, 2000, and filed by the Permittee on June 14, 2000 ("Heindel and Noyes Map").
Whether the Permittee's application of Aquashade® would have no effect upon the Dannenberg water supply because no hydrological nexus exists between the Permittee's ponds and the Dannenberg well.
1. The Permittee proposes to use the aquatic pesticide Aquashade® to control unwanted aquatic plants and algae in two private ponds located entirely on the Permittee's property in Huntington, Vermont. The application rate proposed is one part per million.
2. The larger of the two ponds (designated "West Pond" on the Heindel and Noyes Map) is approximately one acre in size and is approximately 10 to 14 feet deep. The smaller pond (designated "East Pond" on the Heindel and Noyes Map) is approximately 120 feet by 40 feet in size, or approximately 0.1 acre, and is approximately 10 feet deep.
3. The Permittee uses the ponds for swimming, fishing and raising fish for personal use. The larger pond is stocked with trout -- rainbow, brown and brook -- and the small pond is stocked with rainbow trout.
4. Both ponds are manmade and have outflow pipes. The Permittee proposes to treat the ponds in spring or early summer after the water naturally stops flowing out the outlet of each pond.
5. Paul Dannenberg owns residential property adjacent to the Permittee's property. The Dannenberg property is on the westerly side of Delfrate Road and the Permittee's property is on the easterly side of that road.
6. A shallow spring (well), located on the Dannenberg property, is used as a domestic water supply for the Dannenberg residence. The Dannenberg well is located 305 feet west of the closest edge of the West Pond, and 725 feet northwest of the East Pond.
7. On June 1, 2000, Joseph Minadeo, the Board's Associate General Counsel, convened a site visit of the subject properties. Those present included the Mr. Minadeo, Mr. Dannenberg, the Permittee, and the Permittee's hydrogeologist, Craig Heindel. On this site visit, Mr. Heindel inspected the hydrogeologic setting of the two ponds and the Dannenberg well. He conducted a detailed topographic survey of the Permittee's ponds, the Dannenberg well and other pertinent features, with the assistance of John Medenwald, Surveying Technician. Mr. Heindel's observations, findings and conclusions were included in the Heindel and Noyes Report, filed with the Board on June 14, 2000.
8. Using the surveying data collected on June 1, 2000, Heindel and Noyes produced a topographic map, site plan, and water level measurements of the area of the Permittee's two ponds and the Dannenberg well. The elevations shown on the map are based on the assumed elevation of 100.01 feet at the spike Heindel and Noyes installed in the utility pole east of Delfrate Road and west of West Pond.
9. Based on this survey and the Board's own observations on August 8, 2000, the Board finds that water from the West Pond drains into a swale located at the north end of the pond when the pond level rises to the mouth of the outlet pipe, which is at the elevation 98.0 feet. This outlet swale flows to the north, away from the Dannenberg well.
10. On June 1, 2000, the water level in the West Pond was at elevation 97.88 feet. It was 1 to 2 inches lower than the mouth of the outlet pipe, so water was not flowing out of that pond on this day. Earlier in Spring 2000, the water level in West Pond had been high enough to discharge out of the outlet pipe. This discharge had occurred until approximately mid-May, and the water level had only recently dropped below the mouth of the outlet pipe at the time of the June 1 site visit.
11. On June 1, 2000, the water level in East Pond was at elevation 92.86 feet. Based on the site inspection performed by Mr. Heindel on that date and the Board's own observations on August 8, 2000, the Board finds that the water from the East Pond drains to the southwest through an outlet pipe.
12. The ground surface immediately adjacent to the Dannenberg well is 18.62 feet higher than the mouth of the outlet pipe of the West Pond, and 23.76 feet higher than the water level on the East Pond on June 1, 2000.
13. The elevations of some of the features of the Dannenberg well are assumed, as explained below, because Mr. Dannenberg refused to give permission to the site visit participants to remove the cover of his well during the course of the site inspection on June 1, 2000. Therefore, they could not make measurements of the depth to the water surface and the bottom of the well.
14. For purposes of the Heindel and Noyes analysis, it was assumed that the water level in the well on June 1, 2000 was at the same approximate elevation as the surface water in the shallow swale which surrounds the well on all sides, and is only 2 to 3 feet away from the well. The Board finds that this is a reasonable assumption, since the water in this shallow swale comes from surfacing groundwater -- the same groundwater that provides water to the well. This assumption also is supported by Mr. Dannenberg's observations on previous occasions when he has removed the well cover in the late spring or early summer.
15. For the purposes of the Heindel and Noyes analysis, it was assumed that the total depth of the well is 14 feet. The Board finds that this is a reasonable assumption, supported by Mr. Dannenberg's own observations of the water level in the well, previous to the June 1, 2000 site visit.
16. For the purposes of the Heindel and Noyes analysis, it was assumed that the lowest elevation in the Dannenberg well was during the 1999 drought, when Mr. Dannenberg observed the water surface to be about 1 foot above the bottom of the well, or 13 feet deep.
17. Some pertinent elevation results from the Heindel and Noyes survey are as follows:
| Feature | Elev., Ft. | Note |
| Dannenberg Well: | ||
| Top of concrete well cover | 117.28 | Average: cover is slightly tipped |
| Ground surface beside well | 116.62 | Average: varies by 3 to 4 inches |
| Assumed water level in well on 6/1/00 | 115.36 | Assumed: based on water level in swale surrounding well |
| Bottom well | 102.62 | Assumed to be 14 feet below ground surface, per P. Dannenberg |
| Deepest observed water level in well; during 1999 drought | 103.62 | Assumed to be 13 feet below ground surface, per P. Dannenberg |
| West Pond: | ||
| Water Level on 6/1/00 | 97.88 | |
| Mouth of pond outlet pipe | 98.0 | 1 to 2 inches above water level on 6/1/00; represents highest possible level in pond |
| Lowest point in berm surrounding pond | 98.6 | Along west side; represents highest possible level in pond if outlet pipe is plugged. |
| East Pond: | ||
| Water level on 6/1/00 | 92.86 |
18. Based on the Heindel and Noyes survey, the Board finds that the water level in the Dannenberg well is never at an elevation that is lower than the water level in the West Pond or the East Pond.
19. Even at the driest time recorded by Mr. Dannenberg (the 1999 drought), the water level in his well was higher than the water level in the West and East Ponds.
20. Even if the water level in the Dannenberg well dropped to the bottom of the well, it would be higher than the water level in the West and the East Ponds. Thus, even if no water were observable in the well (for example, at the worst point during the 1999 drought), it would be hydrologically impossible for water from the two ponds to reach the Dannenberg well. This is because the Dannenberg well is 4.6 feet higher than the West Pond outlet, at elevation 102.62 feet.
21. Even if the West Pond's outlet pipe became plugged, the water level would only rise to an elevation of 98.6 feet, which is the lowest elevation of the berm surrounding that pond. At this elevation, water from the pond would flow over the berm to the north, entering the outlet swale which flows north in a direction away from the Dannenberg well. The water level could not rise to the same elevation as the bottom of the Dannenberg well, or the water level within it.
22. Shallow groundwater or surface water cannot flow from lower elevations to higher elevations. The water in the Permittee's two ponds will always be lower in elevation than the water level in the Dannenberg well, and the bottom of the Dannenberg well. Therefore, the water in the two ponds cannot flow to the Dannenberg well.
23. Mr. Dannenberg suggests that a "mound effect" could cause water to flow up-gradient from West Pond to the Dannenberg well. A "mound effect" refers to a hydrogeologic situation in which a pond supports an artificially high water table beneath it, by leaking its water into the sub-surface causing a "mounding" of the groundwater.
24. Given the general hydrogeologic setting of West Pond (the wet soils, hill slopes, and shallow-to-bedrock conditions surrounding it), it is highly unlikely that a large groundwater mound has been created by this pond. Even if a groundwater mound does exist, however, that mounding effect could never be any higher than the highest pond elevation, which in this case is still 4.6 feet below the bottom of the Dannenberg well. Therefore, a groundwater mound could not reverse the flow of groundwater -- meaning, it could not cause water from the pond to flow up hill into the Dannenberg well.
25. Based on the June 1, 2000 site inspection and his twenty years of experience at evaluating the recharge areas and groundwater flow directions around shallow dug wells, hydrogeologist Craig Heindel has concluded that the recharge area of the Dannenberg well is located on the wooded hillside to the northwest of the well.
26. The approximate boundaries of the lower portions of the recharge area for the Dannenberg well are indicated on the Heindel and Noyes Map. This recharge area is not near enough to the Permittee's two ponds to suggest a hydrological connection.
27. As noted by ANR's hydrogeologist, Dennis Nealon, and observed by the Board at the Dannenberg property, the bedrock outcrop and corresponding rock fractures slope in a downward direction toward the Permittee's ponds. As such, these observed fractures will not transmit water from the ponds to the Dannenberg well.
28. Given that there is no demonstrated hydrologic or hydrogeologic connection between the two ponds on the Permittee's property and the Dannenberg well, there is no hydrologic or hydrogeologic mechanism by which Aquashade® applied to the Permittee's ponds could reach and affect the Dannenberg well.
Before addressing the essential question of whether to dismiss the pending appeal, the Board addresses the Mr. Dannenberg's pending motions. These are the July 14 Motion and August 4 Motion.
The Board denies both Motions. The Board concludes that the basis for Mr. Dannenberg's grant of party status and the scope of the appeal were previously determined to be grounded in the factual allegation that the alleged injury suffered by Mr. Dannenberg was the potential contamination of the Dannenberg water supply well by Aquashade® applied to the waters of the Permittee's two ponds. See Notice of Appeal (Nov. 17, 2000); Petition for Party Status (Dec. 17, 2000); and April 20 Order at 4-5 and ftn. 2 (Apr. 20, 2000).
The Permittee persuasively argues, in his Reply to the July 14 Motion and August 8 Memorandum, that neither the Board's Rules of Procedure nor considerations of fairness support the grant of an untimely amendment of Permittee's prior pleadings. See WRB 25(A) and (D); see also, WRB 19(C). Mr. Dannenberg has not demonstrated good cause why the alleged water quality impacts to Higley Brook arising from the application of Aquashade® in the two ponds could not have been raised in his Notice of Appeal, in his initial Party Status Petition, or at the first prehearing conference. Indeed, the Board agrees with the Permittee that Mr. Dannenberg's late filings would place an unfair burden on the parties who retained hydrogeologists and prepared reports and filings in anticipation of a hearing on the narrow question of whether the Dannenberg well would be affected by the Permittee's application of Aquashade®. Accordingly, the Board denies Mr. Dannenberg's "new" and untimely petition for party status and request to expand the scope of the issues.
Mr. Dannenberg challenges the Board's authority to dismiss this matter on the basis that the Board has already determined that he is a person "aggrieved" within the meaning of 10 V.S.A. § 1269 and WRB 25(B)(8). Mr. Dannenberg, however, misreads the Board's April 20 Order. While the Board concluded that Mr. Dannenberg had demonstrated a substantial interest (protection of his water supply well) which "may" be affected by the outcome of the proceeding, such grant was "conditional" in that Mr. Dannenberg had made no showing of injury. April 20 Order at 3. The Board, therefore, specifically made its party status determination "subject to any party making a subse-quent showing that the Permittee's application of Aquashade® could have no effect upon [Mr. Dannenberg's] water supply." April 20 Order at 6, IV. Order, Item 3.
Mr. Dannenberg argues that the Board has no authority to make such a "conditional" determination. However, the Board has authority to rule on any number of preliminary issues, including standing and other jurisdictional challenges, and, as a matter of practice, the Board regularly allows appellants and other parties to brief and argue these preliminary issues prior to making any final standing or party status determinations. See, e.g. Re Appeals of Nathan Wallace-Senft and Anita Bellin, Docket Nos. WQ-99-04 and CUD-99-05, Dismissal Order at 3 (Sept. 8, 1999) ("Wallace-Senft"); Re: Husky Injection Molding Systems, Inc., Docket No. MLP-98-06, Memorandum of Decision (Feb. 22, 1999).
Under WRB 24, "[t]he Board may, on its own motion or at the request of a party dismiss, in whole or in part, any matter before the Board for reasons provided by these Rules, by statute, or by law." The Board has determined on numerous occasions that it lacks jurisdiction to hear an appeal on the merits if the appellant lacks the requisite "standing" or fails to state a claim within the ambit of the Board's statutory authority. See, e.g. Re: Wallace-Senft at 7; Re: Vernon Squiers, Docket No. EPR-94-06, Dismissal Order at 2-3 (Jan. 3, 1995).
In its Prehearing Conference Report and Order, dated June 27, 2000, the Board specifically stated that:
. . . should any party provide sufficient evidence to support a conclusion that [the Permittee's] application of Aquashade® could not affect Mr. Dannenberg's water supply, this matter may be dismissed prior to a full hearing on the merits.
The Permittee and ANR have successfully rebutted Mr. Dannenberg's various allegations that a hydrologic connection exists between the Permittee's two ponds and the Dannenberg water supply. Although Mr. Dannenberg was provided with an opportunity to file his own hydrologic data and analysis to rebut the findings and conclusions in the Heindel and Noyes Report, he elected not to do so. The Board finds that the findings and conclusions contained in the Heindel and Noyes Report and Addendum are credible and unrebutted. The Board is persuaded, therefore, that there is no hydrologic nexus between the water in the Permittee's two ponds and Mr. Dannen-berg's well such that the application of Aquashade® to the ponds could affect Mr. Dannenberg's water supply. Without such a hydrologic connection, there can be no "injury" in fact to Mr. Dannenberg's substantial property interest. In short, the Board concludes that Mr. Dannenberg is not a person "aggrieved" within the meaning of 10 V.S.A. § 1269.
Accordingly, as a matter of law, this appeal must be dismissed.
IV. ORDER
A. Appellant Paul Dannenberg's appeal is hereby dismissed for lack of standing.
B. Aquatic Nuisance Control Permit #1999-C01 is hereby affirmed.
C. Jurisdiction over this matter is returned to the Agency of Natural Resources.
Dated at Montpelier, Vermont, this 29th day of December, 2000.
VERMONT WATER RESOURCES BOARD
/s/ David J. Blythe
___________________________
David J. Blythe, Chair
Concurring:
Barbara Farr
John D.E. Roberts
F:\USERS\TINAB\DANNENB\DEC3.WPD
1. By a series of facsimiles exchanged among the parties, the time and date of the June 1, 2000 site inspection was arranged. Likewise, even though the deadline of June
16, 2000 for filing of the Permittee's reports in support of the Motion to Dismiss had not yet been memorialized in an Order, the Permittee was fully aware of, and complied
with, that deadline.
On June 13, 2000, the Permittee also filed written argument asserting that Mr. Dannenberg and his wife hold title to their Huntington real estate as tenants by the entirety,
implying that Mr. Dannenberg could not rightfully act (without the his wife's express consent) in the protection of their Huntington property. Because the Board concludes
there can be no impact upon the Dannenberg water supply from Permittee's authorized used of Aquashade®, the Board determines that it is unnecessary to address this
issue.
The Prehearing Conference Report and Order at 7, Section II.C. (Scheduling), stated:
3. Appellant and ANR shall file, not later than Friday, July 14, 2000, any response to the hydrologists report filed by Permittee, or any independent report relative to the question of whether a hydrological nexus between Permittee's ponds and Appellant's water supply exists, and if so, the extent of such nexus and how it impacts the potential for Permittee's application of Aquashade to affect the Appellant's water supply well.