Summary
The Vermont Supreme Court reviewed appeals concerning Act 250 and stormwater discharge permits for a proposed diverging diamond interchange at Exit 16 of I-89 in Colchester, Vermont. The court upheld the stormwater permit but held that the environmental division erred in dismissing R.L. Vallee, Inc.’s questions under Act 250 Criterion 1. The court reversed issuance of the Act 250 permit and remanded for further consideration of those questions.
Topics
Practice areas
Questions Presented
- Whether the Environmental Division properly granted summary judgment on Vallee's chloride-management questions concerning the stormwater permit by determining that the stormwater application vested under regulations in effect before chloride and phosphorus standards were adopted.
- Whether revisions to VTrans's stormwater application created a new vesting date.
- Whether the Smith vesting rule applies to stormwater permit applications and whether that issue was preserved for appeal.
- Whether revisions to VTrans's Act 250 application created a new vesting date that would require consideration of Act 250 Criterion 5(B).
- Whether Act 250 Criterion 1 and Subcriterion 1(B) are independent provisions and whether the Environmental Division erred by dismissing Criterion 1 questions concerning chloride and phosphorus solely because no applicable standards existed when the application vested.
- Whether the record independently supported affirmance of the Act 250 permit despite the dismissal of the Criterion 1 questions.
Holdings
- The Environmental Division properly determined that VTrans's stormwater permit application was administratively complete and vested on October 3, 2014, before specific chloride and phosphorus standards took effect, and properly granted summary judgment on Vallee's chloride-management questions.
- VTrans's January 2015 revised stormwater application did not supersede the October 2014 application or create a new vesting date.
- The revisions to VTrans's November 2013 Act 250 application did not fundamentally or substantially alter the project and therefore did not create a new vesting date; the Environmental Division properly excluded Criterion 5(B) based on the November 2013 vesting date.
- Act 250 Criterion 1 and Subcriterion 1(B) are independent provisions with distinct standards; satisfaction of applicable stormwater regulations under Subcriterion 1(B), or the vesting of those regulations, does not eliminate the independent inquiry under Criterion 1 into whether the project will result in undue water pollution.
- The Environmental Division erred by dismissing Vallee's Criterion 1 questions concerning chloride and phosphorus solely because the applicable stormwater regulations lacked standards for those pollutants when VTrans's Act 250 application vested.
Key quotations
“We conclude that Criterion 1 and Subcriterion 1(B) are independent criteria with different standards and that the environmental division erred by dismissing Vallee’s Act 250 questions concerning Criterion 1 based solely on the vested rights doctrine and the fact that no chloride or phosphorus standards existed under the stormwater regulations applicable in this case.” (¶ 41)
“For these reasons, the environmental division erred in dismissing the questions.” (¶ 46)
“The environmental division’s issuance of the stormwater permit is affirmed. The environmental division’s issuance of the Act 250 permit is reversed, and the matter is remanded for the environmental division to consider appellant’s amended questions 1.a. and 1.b. concerning Criterion 1 of Act 250.” (¶ 48)
Factual background
The project involved constructing a diverging diamond interchange at Exit 16 of I-89 in Colchester and related improvements to U.S. Route 2/7 in the Sunnyside Brook watershed. The project required an individual stormwater permit and, after its footprint expanded to slightly more than ten acres, a separate Act 250 permit. VTrans submitted an initial stormwater application on October 3, 2014, followed by revisions and supplemental information, and submitted an initial Act 250 application in November 2013. Vallee and Timberlake operated businesses or owned land near the project and challenged potential chloride and phosphorus pollution and other Act 250 issues.
Procedural history
VTrans sought stormwater and Act 250 permits for a diverging diamond interchange at Exit 16 of I-89. The Agency of Natural Resources issued the stormwater permit, and the District 4 Environmental Commission issued the Act 250 permit and amendments. After de novo proceedings in the Environmental Division, that court granted the permits, dismissed or limited several of Vallee's Act 250 questions, and granted summary judgment against Vallee on its challenge to chloride management. The Vermont Supreme Court affirmed the stormwater permit, reversed the Act 250 permit, and remanded for consideration of Vallee's Criterion 1 questions.
Remand instructions
The Environmental Division must consider the appellants' amended questions 1.a. and 1.b. concerning Act 250 Criterion 1, including whether chloride or phosphorus discharges from the proposed project would result in undue water pollution. The stormwater permit remains affirmed.