In re Champlain Parkway SW Discharge Permit
| Decision Date | 14 May 2021 |
| Docket Number | No. 2020-092,2020-092 |
| Citation | 2021 VT 34 |
| Court | Vermont Supreme Court |
| Parties | In re Champlain Parkway SW Discharge Permit (Fortieth Burlington, LLC, Appellant) |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
On Appeal from Superior Court, Environmental Division
Judith L. Dillon of Lisman Leckerling, P.C., Burlington, for Appellant.
Thomas J. Donovan, Jr., Attorney General, and Robert F. McDougall, Assistant Attorney General, Montpelier, for Appellee Vermont Agency of Natural Resources.
Jonathan T. Rose and Malachi T. Brennan of Dunkiel Saunders Elliott Raubvogel & Hand, PLLC, Burlington, for Appellee City of Burlington.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. The City of Burlington and the Vermont Agency of Transportation (VTrans) are jointly in the process of constructing the Champlain Parkway, a roadway project intended to connect Interstate 189 to downtown Burlington and make numerous improvements to the surrounding area. Fortieth Burlington, LLC (Fortieth) owns property adjacent to the project and has challenged the decision of the Vermont Agency of Natural Resources (ANR) to grant the project a renewed stormwater discharge permit. Fortieth argued before ANR and the Environmental Division that the agency unlawfully waived a filing deadline in its 2017 stormwater regulations and misinterpreted a provision of its 2017 Stormwater Management Manual. We affirm the Environmental Division's grant of summary judgment for the City and VTrans on these claims.
¶ 2. First, some background. In 10 V.S.A. § 1264, the Legislature directed ANR to implement a stormwater permitting program and adopt rules to manage stormwater runoff throughout the state. See id. § 1264(a)(2)(B), (f). On October 11, 2012, ANR granted the City a stormwater discharge permit for the Champlain Parkway project. The permit expired five years after the date of issue and provided: "The permittee shall reapply for a renewed discharge permit ninety days prior to the expiration date of this permit." The City's permit was thus set to expire on October 11, 2017.
¶ 3. Effective July 1, 2017, ANR promulgated a set of regulations to manage stormwater discharge in the state. Environmental Protection Rules, Chapter 22, Stormwater Management Rule for Stormwater-Impaired Waters [hereinafter 2017 Regulations], https://dec.vermont.gov/sites/dec/files/documents/StormwaterManagementRule_ForStormwaterImpairedWaters_Ch22_FinalAdopted_2016-12-15.pdf [https://perma.cc/3QJC-AWYF]. One of the 2017 regulations provided: "A permittee who wishes to continue to discharge after the expiration date of . . . her individual permit shall file an application for reissuance of the individual permit, on a form provided by [ANR], at least 90 days prior to its expiration." Id. § 22-309(k)(1).1
¶ 4. Also effective July 1, 2017, ANR adopted the 2017 Stormwater Management Manual (VSMM). 2017 Vermont Stormwater Management Manual Rule and Design Guidance, § 1.4 [hereinafter 2017 VSMM], https://dec.vermont.gov/sites/dec/files/wsm/stormwater/docs/Permitinformation/2017%20VSMM_Rule_and_Design_Guidance_04172017.pdf [https://perma.cc/NGV5-LC6S]. The 2017 VSMM updates the stormwater management practices and site design approaches of its predecessor, the 2002 VSMM. See id. § 1.0. As relevant here, the transition clause of the 2017 VSMM provides that "the standards in the 2002 VSMM shall apply to a project if the redevelopment or expansion is a public transportation project, and as of January 1, 2017, the Agency of Transportation or the municipality principally responsible for the project has initiated right-of-way valuation activities." Id. § 1.4.
¶ 5. It is uncontested that the City filed an application to renew the permit on September 15, 2017—after the filing deadline, but twenty-six days before the permit was set to expire. ANR accepted the City's filing as timely and placed a proposed, renewed permit up for public comment, essentially waiving the deadline.
¶ 6. Fortieth filed comments challenging the proposed permit, among other reasons, because the City did not comply with the filing deadline and because the renewal application did not indicate compliance with the 2017 VSMM. ANR rejected the deadline challenge, concluding that the application was timely because it was filed before the permit expired. The agency also rejected the VSMM challenge, pointing to the 2017 VSMM transition clause. It thus issued the project a renewed permit and indicated that the project complied with the 2017 regulations and the 2002 VSMM.
¶ 7. Fortieth appealed to the Environmental Division, arguing that the filing deadline had to be enforced as written and that the project did not qualify for the transition clause of the 2017 VSMM because right-of-way valuation activities were not initiated until after January 1, 2017. The City and ANR moved for partial summary judgment on the deadline issue. They argued that the filing deadline was waivable as a mere procedural rule designed to benefit ANR and that the waiver did not prejudice Fortieth in any respect. The movants submitted evidence that it was ANR's consistent practice to accept renewal applications filed after the filing deadline if they were submitted before the permit expired. The Environmental Division agreed that the deadline was aninternal procedural rule, deviation from which resulted in no prejudice. The court therefore granted partial summary judgment on this issue.
¶ 8. Separately, the City moved for partial summary judgment on the VSMM issue and marshalled evidence that right-of-way valuation activities were initiated as far back as the 1980s, when the first steps were taken to secure a right-of-way for the project, and more recently in 2016, when property valuation activities were undertaken for a new section of the roadway. The Environmental Division granted partial summary judgment for the City on this issue as well.
¶ 9. We review the Environmental Division's grant of summary judgment without deference, and we apply the same standard as that court. In re Mathez Act 250 LU Permit, 2018 VT 55, ¶ 5, 207 Vt. 537, 192 A.3d 400. Summary judgment is appropriate "when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id.
¶ 10. On appeal, Fortieth first argues that the plain language of the permit and the 2017 regulations must be enforced without deferring to the agency's interpretation. It argues that the permit and regulations do not confer discretion on ANR to waive the filing deadline it adopted. Fortieth further contends that the deadline is not an internal procedural rule that ANR can disregard and that it was prejudiced by the agency's waiver of the deadline.
¶ 11. As a preliminary matter, there is no agency interpretation to defer to in this deadline issue. While we defer to an agency's interpretation of its own regulations, see, e.g., In re Joyce, 2018 VT 90, ¶ 18, 208 Vt. 226, 197 A.3d 378, ANR did not interpret the 2017 regulations or the permit differently than their plain meanings dictate. The regulations and the permit are unambiguous: A permittee must file for renewal ninety days prior to the expiration date of the permit. See supra, ¶¶ 2-3. ANR did not interpret these provisions otherwise; it waived the deadline altogether. Moreover, this is not a case where a substantive issue requiring agency interpretation is woven into a procedural matter, as in In re Stowe Cady Hill Solar, LLC, where an agency rule required the agency to determine whether certain applications "substantially" complied withprescribed requirements. 2018 VT 3, ¶ 19, 206 Vt. 430, 182 A.3d 53. ANR's action here of waiving a filing deadline in its own regulations is the type of procedural ruling we review for abuse of discretion, which exists "where an agency has declined to exercise its discretion or has done so on untenable or unreasonable grounds." Id. ¶ 17.
¶ 12. We accordingly consider whether ANR abused its discretion in waiving the filing deadline it established. Generally, administrative agencies must follow their own regulations until they rescind or amend them. This settled principle is reflected in our state law, federal law, and the law of other states. See, e.g., Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 422 (1942); Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 800 A.2d 768, 777 (Md. 2002); N.Y. Times Co. v. Comm'r of Revenue, 693 N.E.2d 682, 685 (Mass. 1998); In re Peel Gallery of Fine Arts, 149 Vt. 348, 351, 543 A.2d 695, 697 (1988). But, as ever, there are exceptions to the rule.
¶ 13. The U.S. Supreme Court adopted one such exception in American Farm Lines v. Black Ball Freight Services, 397 U.S. 532 (1970). There, federal statutes granted the Interstate Commerce Commission (ICC) the power to grant motor carriers expedited, temporary operating authority to meet urgent transportation needs. Further to that power, the ICC promulgated rules requiring applications for temporary authority to include statements with specified information designed to establish the need for the temporary authority. American Farm Lines filed an application with statements generally describing the need for the authority but omitting some of the specified information required by the ICC rule. The ICC nevertheless granted the application, an action other carriers challenged as an unlawful failure of the ICC to require strict compliance with its own rules.
¶ 14. The Court observed that the agency was "entitled to a measure of discretion in...
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