Summary
The Vermont Superior Court Environmental Division addresses coordinated appeals from water quality certifications issued by the Vermont Agency of Natural Resources for the Bellows Falls, Vernon, and Wilder hydroelectric projects. The court considers motions to dismiss Questions 1 and 2 for lack of standing and failure to state a claim, as well as Appellants’ motion to amend. The decision concludes that Appellants failed to preserve their challenges to the applicable “reasonable assurance” standard through sufficiently particular public comments.
Topics
Practice areas
Questions Presented
- Whether Questions 1 and 2 were barred because the appellants failed to identify or sufficiently raise the underlying issues in comments submitted to ANR as required by 10 V.S.A. § 8504(d)(2)(A).
- Whether Questions 1 and 2 were improper because they challenged ANR's prior certification process and therefore did not comport with the Environmental Division's de novo review.
- Whether the appellants' claimed failure to preserve Questions 1 and 2 could be excused under the manifest-injustice provision of 10 V.S.A. § 8504(d)(2)(B)(iv).
- Whether Questions 3-12, 14, and 16-18 should be dismissed or clarified for lack of specificity and failure to identify particular provisions of the Vermont Water Quality Standards or other law.
- Whether Questions 5 and 6 should be dismissed or clarified because they challenged conditions imposed by ANR and, as to Question 6, potentially asserted third-party standing.
- Whether Questions 8 and 16 should be dismissed because the court lacked jurisdiction over the Fish Passage Agreement and related memorandum of understanding.
- Whether Questions 13 and 15 should be withdrawn and whether the remaining questions should be dismissed as duplicative.
Holdings
- Questions 1 and 2 must be dismissed because the appellants did not submit comments that explicitly or intrinsically identified, with enough particularity to permit a meaningful response, their challenge to the reasonable-assurance standard or the alleged incompatibility between that standard and the will-comply standard.
- Questions 1 and 2 were alternatively subject to dismissal because they focused on alleged shortcomings in ANR's prior certification process rather than presenting issues for the Environmental Division's de novo adjudication.
- The appellants could not invoke 10 V.S.A. § 8504(d)(2)(B)(iv) to excuse their failure to preserve Questions 1 and 2.
- Outright dismissal was not warranted, but clarification was required because most or all of the questions were overly vague, lacked specific citations to governing law, or did not comport with de novo review.
- Questions 5 and 6 were not dismissed, but the appellants were required to revise and clarify them to reflect de novo review, identify applicable legal provisions, and avoid improper third-party standing.
- The Environmental Division lacks jurisdiction to adjudicate or enforce the Fish Passage Agreement or related memorandum of understanding, but the existence and contents of those documents may be relevant facts in properly presented issues.
Key quotations
“Thus, both Questions must be DISMISSED as outside the scope of this Court’s subject matter jurisdiction.” (p. 12)
“For all of the foregoing reasons, Appellants’ Questions 1 and 2 are DISMISSED pursuant to V.R.C.P. 12(b)(1) and for failure to comport with this Court’s de novo review standard.” (p. 13)
“Appellants must submit their further-clarified Statement of Questions within 14 days of the date of this decision.” (p. 18)
Factual background
ANR issued conditional Clean Water Act water quality certifications for Great River Hydro projects at Bellows Falls, Vernon, and Wilder, Vermont. The appellants participated extensively in the public-comment process but did not specifically identify comments challenging ANR's use of a reasonable-assurance standard rather than a will-comply standard. Their Statements of Questions challenged the certifications, the standards applied, certification conditions, the public-comment process, and matters relating to a Fish Passage Agreement and related memorandum of understanding.
Procedural history
ANR issued conditional water quality certifications on April 16, 2025, and the appellants timely appealed on May 16, 2025. The appellants filed Statements of Questions containing eighteen questions in each docket. The court dismissed Questions 1 and 2, denied dismissal of the remaining questions, granted clarification of several questions, denied amendment of Question 2 as futile, granted amendment in part and denied it in part as to the remaining questions, and directed the appellants to file further clarified Statements of Questions within fourteen days.
Remand instructions
No remand. Appellants must file further clarified Statements of Questions within fourteen days, with specific citations, no catch-all language, and no unnecessary duplication. Questions 13 and 15 were withdrawn.