Petition of Town of Sherburne, 89-076

• Decision Date: 20 July 1990
• Docket Number: No. 89-076,89-076
• Citation: 154 Vt. 596,581 A.2d 274
• Parties: In re Petition of TOWN OF SHERBURNE.
• Court: Vermont Supreme Court

Page 274

581 A.2d 274

154 Vt. 596

In re Petition of TOWN OF SHERBURNE.

No. 89-076.

Supreme Court of Vermont.

July 20, 1990.

Langrock Sperry Parker & Wool, Middlebury, and John H. Marshall and Dale A. Rocheleau of Downs Rachlin & Martin, Burlington, for appellants.

Witten, Saltonstall & Woolmington, P.C., Bennington, for appellees.

Before MORSE, J., MARTIN, Superior Judge, BARNEY, C.J. (Ret.) and SPRINGER, District Judge (Ret.), Specially Assigned.

MORSE, Justice.

The Town of Sherburne and Killington, Ltd. appeal a superior court decision reversing a ruling of the Vermont Water Resources Board. The Board ruled that the existing classification of a 200-foot portion of the Ottauquechee River as Class B is contrary to the public interest. See 10 V.S.A. § 1253(c), (e). The superior court determined that the Board acted arbitrarily, unreasonably and contrary to law. See id. § 1270. We reverse and reinstate the Board's decision.

I.

The Ottauquechee River flows through Sherburne Center, Bridgewater, Woodstock, Taftsville, and Quechee before it converges with the Connecticut River about forty miles from its headwaters. The river is managed according to the provisions of 10 V.S.A. chapter 47 and is classified under §§ 1252 and 1253 as both Class B and Class C waters at certain intervals along its length. The portion of the river at issue is currently managed as Class B waters. ¹

The Town of Sherburne has undergone extensive development in the past two decades. Sherburne is noted for ski areas that attract both state residents and nonresidents. Its population increases ten-fold during ski and recreational seasons. Most of the early housing developments in Sherburne were built with individual on-site sewage disposal facilities that have proven to be unsuitable for that area due to the soil's poor natural drainage. Some of these on-site systems have malfunctioned and threaten to pollute the waters at issue.

To permit continued growth, especially in "cluster" developments called for by town and regional plans, the Town proposed to construct and operate a central sewage disposal facility that would discharge effluents into the portion of the Ottauquechee River in question. Because the state's water pollution control scheme does not allow for the discharge of treated effluents into Class B waters, ² the Town sought to reclassify the subject waters as Class C waters.

Accordingly, in late 1986, the Town petitioned the Board to reclassify a 200-foot portion of the river located within Sherburne Center. The Town requested that "the waters of the Ottauquechee River, from a point at the easterly side of Route # 4 as it crosses above the river southerly of the confluence of Falls Brook and continuing downstream for a distance of 200 feet, be reclassified as Class C waters." The petition was submitted pursuant to 10 V.S.A. § 1253(c), which then required the Board first to determine whether the existing classification is contrary to the public interest. ³ See In re Ranch Brook, 146 Vt. 602, 606, 508 A.2d 703, 705 (1986). The Town contended in its petition that "it suffers injustice and inequity as a result of the established classification of the proposed Class C zone of the Ottauquechee River and ... that the established classification ... is contrary to the public interest," arguing that a central sewage treatment facility would provide for the orderly development of planned growth within the Town and would abate existing and potential pollution sources within the area.

The Board convened a public hearing on April 27 and 28, 1987, at which it heard testimony and admitted exhibits. In its extensive findings of fact and conclusions of law, the Board found, in sum, that "B" uses--namely, swimming, recreation involving extended water contact or ingestion, and public water supply--do not occur and will not be attained in the subject waters. The Board concluded that "[t]he current classification of the waters in question is contrary to the public interest in that it establishes water quality management goals that are inconsistent with existing and attainable uses." The Board announced in its decision that it planned to propose a rule reclassifying this section of the Ottauquechee as Class C waters. However, it is the decision that the existing classification is contrary to the public interest which is here appealed, not the reclassification rule which was later proposed and adopted by the Board.

The following parties, appellees here, filed an appeal in Rutland Superior Court pursuant to 10 V.S.A. § 1270 ⁴: Vermont Natural Resources Council, Connecticut River Watershed Council, North Hartland Cooperative Water Company, Trout Unlimited, Two-Rivers Ottauquechee Regional Planning Commission, Town of Bridgewater Planning Commission, Town of Bridgewater, and George Turner. On January 19, 1989, that court reversed the Board, holding that the Board had acted arbitrarily, unreasonably and contrary to law by failing to enforce the legislation's antidegradation policy and to give "due consideration" to the ten factors enumerated in § 1253(e). ⁵ The present appeal followed.

II.

This case arises in the context of a complex relationship between the federal and state water pollution control schemes. Congress enacted the Federal Water Pollution Prevention and Control Act (Clean Water Act), 33 U.S.C.A. §§ 1251-1387 (West 1986 & Supp.1990), to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Id. § 1251(a). The federal scheme allows states to adopt water quality standards, provided the standards meet the approval of the United States Environmental Protection Agency and are at least as stringent as the federal standards. ⁶ Id. § 1313(a); 40 C.F.R. §§ 131.4, 131.5 (1989). In particular, states must adopt water uses consistent with the objectives of the Clean Water Act, and water quality criteria sufficient to protect those uses. 40 C.F.R. § 131.5(a)-(b) (1989).

Congress also mandated that states "develop and adopt a statewide antidegradation policy." Id. § 131.12(a); see also 33 U.S.C. § 1313(d)(4)(B). The antidegradation policy

shall, at a minimum, be consistent with the following: (1) Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected[; and] (2) Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds ... that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located.

40 C.F.R. § 131.12(a)(1)-(2) (1989).

The federal regulations distinguish between "designated uses" and "existing uses." A "designated use" is one that is specified in the state water quality standards regardless of whether it has actually been attained. Id. § 131.3(f). An "existing use" is one that has actually been attained on a given body of water after November 28, 1975. Id. § 131.3(e). This distinction is significant here because the regulations permit a state to reclassify waters and remove a designated use if the state demonstrates that attainment of the designated use is not "feasible" because, inter alia, "low flow conditions or water levels prevent the attainment of the use." Id. § 131.10(g).

The Vermont standards have been approved by the U.S. Environmental Protection Agency as satisfying the federal requirements. The general policy of the state is to manage the state's waters so as to protect, maintain, and improve water quality. Vermont Water Quality Standards § 1-02(A)(1). The state also recognizes that, although the discharge of wastes into waters may adversely affect water quality, such discharges are a legitimate use of waters when conducted according to law. Id. § 1-02(B). "It is the policy of the State of Vermont to provide for those legitimate uses of waters which are necessary for existing or future social and economic development...." Id. Consistent with federal requirements, the state antidegradation policy seeks to maintain "[e]xisting instream uses and the level of water quality necessary to protect those existing uses," id. § 1-03(A), as well as to protect "high-quality" waters by allowing "a limited reduction" in water quality only under certain circumstances, id. § 1-03(B). ⁷

III.

An appeal in the superior court from a decision of the Water Resources Board is to be "based solely upon the record of the proceedings before the board." 10 V.S.A. § 1270. The statute directs the superior court to "determine whether the board acted arbitrarily, unreasonably or contrary to law and [to] issue its findings and order accordingly."

Section 1270 also provides for appeals from the decision of the superior court to the Supreme Court, but does not clarify what standard of review should govern appeals in the Supreme Court. Because the superior court did not take evidence but functioned solely as an appellate body in this context, and because, unlike the Board, it has no special expertise on the question of water pollution and the management of the state's waters, we conclude that this Court's function on review in this case is the same as that specified for the superior court--that is, to determine whether the Board acted arbitrarily, unreasonably or contrary to law. This is consistent with the approach taken by other courts when there is an intermediate level of appeal from an administrative body. In Sierra Club v. Marsh, 769 F.2d 868, 871-72 (1st Cir.1985), for example, the court reasoned as follows:

[A] court of appeals review of a district court review of an administrative agency's record is an awkward legal animal. Are we to set aside such a district court decision only if it is "clearly erroneous"? Fed.R.Civ.P. 52(a). Or, are we to ignore the district court and simply conduct...