Bellows Falls Hydroelectric Water Quality Cert. Appeal - Decision on Motions

VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION
32 Cherry St, 2nd Floor, Suite 303, Docket Nos. 25-ENV-00030
Burlington, VT 05401 25-ENV-00031
802-951-1740 25-ENV-00032
www.vermontjudiciary.org

Bellows Falls Hydroelectric Project DECISION ON MOTIONS
Water Quality Cert. Appeal, et al.

These coordinated matters involve appeals by Connecticut River Conservancy (CRC),
Vermont Natural Resources Council (VNRC), Conservation Law Foundation (CLF), and American
Whitewater (AW) (collectively, Appellants), from water quality certifications (WQCs) issued by the
Vermont Agency of Natural Resources (ANR) to Applicant/Appellee, Great River Hydro, LLC
(Applicant) for hydroelectric projects located on the Connecticut River in Bellows Falls, Vernon and
Wilder, Vermont, respectively. ANR issued each of the relevant certifications with conditions on
April 16, 2025, and those certifications were timely appealed on May 16, 2025.
On June 5, 2025, Appellants filed a Statement of Questions consisting of eighteen questions
in each of the appeal dockets. Applicant has moved to dismiss all Questions before the Court either
pursuant to V.R.C.P. 12(b)(1) for lack of subject matter jurisdiction, or pursuant to V.R.C.P. 12(b)(6)
for failure to state a claim upon which relief can be granted.1 ANR supports Applicant’s motion with
respect to Questions 1 and 2 and takes no position with respect to the remaining aspects of the motion.
Appellants oppose the motion and have moved to amend their Statement of Questions, which
Applicant opposes.
Legal Standard
V.R.C.P. 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. When
reviewing such a motion, this Court accepts all uncontroverted factual allegations as true and construes
them in the light most favorable to the nonmoving party. Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190
Vt. 245. Standing is a “necessary component to this Court's subject matter jurisdiction.” Bischoff v.
Bletz, 2008 VT 16, ¶ 15, 183 Vt. 235.

1 In the alternative, Applicant requests that the Court order Appellants to clarify their Questions 3–18 as
authorized by V.R.E.C.P. 5(f).

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V.R.C.P. 12(b)(6) governs motions to dismiss for failure to state a claim upon which relief can
be granted. Such motions are notably “disfavored” and “rarely granted.” Colby v. Umbrella, Inc.,
2008 VT 20, ¶ 5. A Rule 12(b)(6) motion may not be granted “unless it is beyond doubt that there
are no facts or circumstances that would entitle the nonmoving party to relief.” Id. (internal quotation
and citation omitted). In evaluating a motion under V.R.C.P. 12(b)(6), we take the factual allegations
asserted by the nonmovant as true, keeping in mind that the purpose of a V.R.C.P. 12(b)(6) motion is
to test the law of the claim, not the facts that might support it. Richards v. Town of Norwich, 169
Vt. 44, 48–49 (1999); Powers v. Off. of Child Support, 173 Vt. 390, 395 (2002).
Discussion
I. Applicant’s Motion to Dismiss Questions 1 & 2
Applicant seeks dismissal of Questions 1 and 2 pursuant to both V.R.C.P. 12(b)(1) and
V.R.C.P. 12(b)(6). Under Rule 12(b)(1), it asserts that Appellants lack standing to raise the issues
therein and that Questions 1 and 2 are inconsistent with this Court’s de novo review. Under Rule
12(b)(6), Applicant asserts that the Questions fail to state a claim on which relief may be granted.
Given the centrality of Questions 1 and 2 to Appellants’ appeal and their interrelated nature, the Court
addresses them together.
Question 1 asks: “Whether the WQCs apply the incorrect ‘reasonable assurance’ standard
rather than the requisite ‘will comply’ with VWQS standard . . . or ‘assure that any applicant . . . will
comply with’ VWQS and appropriate requirements of state law standard . . . required by CWA
[statutory and regulatory citations omitted].” Statement of Questions (filed June 5, 2025).
Question 2, as originally submitted, asks: “Whether the WQCs fail to properly consider and
reflect public comment because public comment was reviewed and addressed under the incorrect
‘reasonable assurance’ standard.” Id. Appellants have moved to amend Question 2 to ask: “Whether
the WQCs fail to properly consider and reflect public comment . . . because public comment was
reviewed and addressed under the incorrect ‘reasonable assurance’ standard rather than the requisite
‘will comply’ with VWQS standard . . . or ‘assure that the applicant . . . will comply with VWQS and
appropriate requirements of state law standard . . . required by CWA [statutory and regulatory citations
omitted].” Revised Statement of Questions (filed Oct. 10, 2025).
The Court first addresses Applicant’s motion to dismiss these Questions on standing grounds.
This aspect of Applicant’s motion focuses on whether Appellants raised the issues therein when
submitting public comments to ANR below.

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Any person aggrieved may appeal an act or decision of ANR. 10 V.S.A. § 8504(a). A “person
aggrieved” is one “who alleges an injury to a particularized interest protected by the provisions of law
listed in section 8503 of [Title 10], attributable to an act or decision by ... the Secretary [of ANR] ...
that can be redressed by the Environmental Division ....” 10 V.S.A. § 8502(7). When a party's standing
is challenged, it must demonstrate that it has standing to appeal to this Court. See In re Silver Birch
Props., LLC, No. 22-ENV-00070, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Mar. 29, 2023) (Durkin, J.)
(“While the Court initially accords persons who enter a timely appearance party status, if challenged,
the party must demonstrate, at a minimum, that they are vested with constitutional standing to remain
as a party before the Court in the pending appeal.”) (citation omitted).
In addition to the general standing requirements, a would-be appellant of an ANR decision
must have “submitted to the Secretary a written comment during the comment period or an oral
comment at the public meeting conducted by the Secretary.” 10 V.S.A. § 8504(d)(2)(A). An appellant
“may only appeal issues related to the person's comment to the Secretary.” Id. “To be sufficient, for
the purposes of appeal, a comment to the Secretary shall identify each reasonably ascertainable issue
with enough particularity so that a meaningful response can be provided.” 10 V.S.A § 8504(d)(2)(A)(i).
The appellant must also identify each comment submitted to the Secretary that identifies or relates to
the issue raised in a subsequent appeal. 10 V.S.A. § 8504(d)(2)(A)(ii). Further, when interpreting §
8504(d)(2)(A), this Court has adopted the principle applicable to Statements of Questions which states
that issues intrinsic to the questions in a Statement of Questions may be preserved for review on
appeal. In re Champlain Parkway SW Discharge Permit, No. 76-7-18 Vtec, slip op. at 8 (Vt. Super.
Ct. Envtl. Div. April 29, 2019) (Durkin, J.) (citing In re Jolley Assocs., 2009 VT 132, ¶9).
A party moving to dismiss an appeal, or issue within an appeal, pursuant to § 8504(d)(2)(A)
has the burden of proving that the comment requirements were not satisfied. 10 V.S.A.
§ 8504(d)(2)(A)(iii). Thus, Applicant here has the burden of demonstrating that dismissal is warranted
under § 8504(d)(2)(A).
The purposes of § 8504(d)(2)(A) are to: (1) “require participation in the permitting process of
the Department of Environmental Conservation (DEC) and identification of concerns about an
application early in that process so that DEC and the applicant have an opportunity to address those
concerns where possible before a permit becomes final and subject to appeal” and (2) “require that
an issue raised on appeal be identified or related to an issue identified in a comment to the Secretary
while guarding against an overly technical approach to the preservation of issues for the purpose of

Page 3 of 19
appeal when interpreting whether an appeal satisfies [the statutory requirement].” 2015, No. 150 (Adj.
Sess.), § 5b (PURPOSE).2
With these provisions and purposes in mind, we turn to the comments that Appellants
submitted to ANR below. The Court will also evaluate whether Appellants below provided comments
that intrinsically raised the issues within Questions 1 and 2.
Appellants did not identify any comments they submitted to ANR in support of any issue they
seek to raise on appeal as required by 10 V.S.A. § 8504(d)(2)(A)(ii) in their Notice(s) of Appeal or their
Statement(s) of Questions.3 Instead, Appellants’ Notice(s) of Appeal in each docket merely state that
“[e]ach Appellant submitted comments on the proposed Water Quality Certification that is the subject
of this appeal.” Those comments, comprised of over 400 pages, have been submitted to the Court as
Exhibits 4-8 of the pending motion to dismiss.
In their response to the pending motion to dismiss with respect to Questions 1 and 2,
Appellants point to Exhibit 4 (pages 5 and 44), Exhibit 5 (pages 2–3), Exhibit 6 (page 5), Exhibit 7
(page 4) and Exhibit 8 (pages 2–3) as comments identifying or related to the issues in Questions 1 and
2. They also point to Comment 4/Response 4 in Exhibits 1 through 3 of their Motion to Vacate
Certification and for Judgment on Questions 1 and 2, addressed by separate Entry Order, as support
for their argument that the issues raised by Questions 1 and 2 were identified in, or are related to,
comments they submitted to ANR.4 The Court will therefore analyze these comments and responses
under § 8504(d)(2)(A), as relevant.
As set forth above, Questions 1 and 2 effectively ask whether the certifications apply the
“incorrect ‘reasonable assurance’ standard rather than the requisite ‘will comply’ with VWQS
standard” and “fail to properly consider and reflect public comment because public comment was
reviewed and addressed under the incorrect ‘reasonable assurance’ standard” (rather than the so-called
“will comply” standard). Both Questions 1 and 2 focus on ANR’s alleged use of an “incorrect

2
This Court has looked to this purpose statement of § 8504 in interpreting cases concerning its application in at
least two prior cases. See Champlain Parkway, No. 76-7-18 Vtec, slip op. at 11 (Apr. 29, 2019) (Durkin, J.); In re City of
Rutland WWTF NPDES, No. 22-ENV-00054, slip op. at 6 (Vt. Super. Ct. Envtl. Div. Jul. 28, 2023) (Walsh,J.).
3 The Court notes that despite § 8504(d)(2)(ii)’s requirement to specify the comments submitted to ANR that

identify or relate to an issue raised on appeal, it does not mandate they be identified in any particular location. Thus, the
Court will not here ascribe fault to the lack of citation in either document, though either filing would be a logical location
to so identify, most notably a statement of questions.
4 Exhibits 1 through 3 are comprised of ANR’s Response(s) to Public Comments for the Wilder, Bellows Falls

and Vernon Hydroelectric Projects, respectively.

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‘reasonable assurance’ standard” in connection with its administration and issuance of the
certifications.
Exhibit 4, page 5, does not identify an issue with ANR’s use of the reasonable assurance
standard. Instead, it quotes language from §29A-206 of the Vermont Water Quality Standards
(VWQS) that includes that same reasonable assurance standard and states that “CRC contends that
both GRH’s application and the draft WQC does not in fact provide reasonable assurance.” Thus,
rather than challenge the reasonable assurance standard, this comment implicitly suggests that the
standard is correct but has not been met. This comment does not identify the issue of the incorrect
reasonable assurance standard with enough particularity so that a meaningful response can be
provided. Similarly, Exhibit 4, page 44, does not identify the “incorrect ‘reasonable assurance’
standard” and, to the extent that it references the “will comply” language of 33 U.S.C. § 1341, the
comment does not identify the issue of the allegedly incompatible standards with enough particularity
so that a meaningful response can be provided.5
Further, nothing within Exhibit 5’s cited pages 2 and 3 identifies the issues within Questions
1 or 2 sufficiently. Exhibit 5 contains general comments regarding the Bellows Falls project, none of
which identify an issue with an allegedly incorrect regulatory standard. Page 3 contains a description
of the requirements of Clean Water Act § 401(a) and quotes the § 401(a) “will comply” language. It
goes on to both quote and summarize the language of § 401(d). The cited language contains no
reference to the reasonable assurance standard or puts ANR or the Applicant on notice regarding
Appellants’ alleged concern with the application of that standard.6 On the contrary, the Appellants’
reference to § 401(d)’s requirement that a certification contain conditions “‘to assure any applicant’
will comply with the applicable water quality requirements,” is substantially similar to the “reasonable
assurance of compliance” standard, again suggesting Appellants’ implicit support for that standard.
Thus, Appellants’ passing references to § 401(a) are insufficient to meet the requirements of §
8504(d)(2)(A)(i) because they fail to identify the issues that Appellants attempt to raise in Questions 1
and 2 with “enough particularity so that a meaningful response can be provided.” Id. at §
8504(d)(2)(A)(i).

5
Certainly, nothing on page 44 identified a concern with the applicable regulatory standard with sufficient
particularity to allow ANR and the Applicant an opportunity to respond before the certification became final and subject
to appeal.
6 Indeed, there is no reference to “reasonable assurance” anywhere in Exhibit 5.

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Appellants next cite Exhibit 6, page 5, which also fails to sufficiently raise the issues in
Questions 1 and 2. In relevant part the cited language is virtually identical to cited language in Exhibit
4 addressed above, and it fails to meet the requirements of § 8504(d)(2)(A) for the same reasons.7
Exhibit 7, page 4, similarly does not suffice to meet the requirements of § 8504(d)(2)(A). While
the cited language includes the words “will comply,” it fails to identify with sufficient particularity any
assertion that the “reasonable assurance standard” is incorrect (or at odds with the “will comply”
language) to allow ANR and/or Applicant to address the concern before the certifications became
final and appeals were taken.
Next, Exhibit 8, pages 2–3, resembles Exhibit 5’s cited language, and it also fails to meet the
requirements of § 8504(d)(2)(A) for the same reasons discussed above. The words “reasonable
assurance” do not appear anywhere in Exhibit 8 and the comments set forth therein are insufficient
to satisfy the “particularity” element of § 8504(d)(2)(A)(i) as it relates to the applicable regulatory
standard.
Finally, Appellants point to Comment 4/Response 4 of each of the relevant responsiveness
summaries in support of their compliance with § 8504(d)(2)(A) with respect to Questions 1 and 2.
Comment 4/Response 4 provide:
Comment 4: Comments addressed the scope of the Department’s
review in issuing water quality certifications.
Response 4: The Department clearly defined the appropriate scope of
certification and included conditions that reflect that scope. To issue
a water quality certification under Section 401 of the federal Clean
Water Act, the Department must “evaluate whether the activity will
comply with applicable water quality requirements.” 40 C.F.R. § 121.3.
The scope of certification is explicitly stated as the first finding in the
analysis section of the Certification (Finding 451). The Department’s
review of the activity is further demonstrated by both the analysis and
the inclusion of conditions that address the activity as a whole. For
example, the Certification includes conditions related to water level
management in the impoundment and provisions related to fish
passage.

7 The Court notes that Exhibit 6, page 78, contains an uncited reference by Appellants’ consultant, Princeton

Hydro, LLC, to the reasonable assurance standard. Specifically, the consultant states that “a water quality certification
shall not be issued unless the applicant demonstrates … 2) there is reasonable assurance that a discharge will not result in
a violation of the water quality rules, including water quality criteria and the Antidegradation policy.” (Emphasis added)
Thus, it appears as though one of Appellants’ consultants here expressly acknowledges the reasonable assurances standard
and does not object to or raise any other concern about it.

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See Appellants’ Exhibits 1-3 to Motion to Vacate Certification and For Judgment on Questions 1 and
2.
In response to the pending motion/Appellants’ offer, ANR observes that Appellants’ “scope
of review” comments focused not on the issues raised in Questions 1 and 2, but instead on another
issue ― “the scope of a State or tribe’s review of a proposed project under § 401” and the imposition
of conditions related to the impacts of the “activity as a whole” that is associated with the discharge.
See PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S., 700, 712 (1994). The
Court agrees. See Appellants’ Exhibit 5, at 3 (referencing scope of state or tribe review), 19 (requesting
findings be clarified to include full scope of project area), 22 (“Addressing the water quality impacts
from a dam requires a broader look than the nature of a discharge from a powerhouse.”); Exhibit 8,
at 3 (same as Exhibit 5, at 3, above), 10–11 (commenting that ANR was well within scope of authority
to address impacts from Wilder Dam), 19 (same as Exhibit 5, Page 22). These comments, some cited
by Appellants and some reviewed by the Court, concern the scope of ANR’s certification review
authority, including its authority to impose conditions addressing the water quality related impacts of
the “activity as a whole,” and do not raise the issue of the proper regulatory standard, let alone raise
that issue with particularity.
For all these reasons, the Court concludes that Appellants did not submit comments that
explicitly addressed the issues raised in Questions 1 and 2 below.
Despite this, Appellants argue that even if they did not submit sufficient comments that
identified the issues set forth in Questions 1 and 2 and/or raise explicit concerns with the “reasonable
assurance” standard, as required by § 8504(d)(2)(A), the application of the “will comply standard”
referenced in their comments is clearly related to and intrinsic to the entirety of their comments. They
state that their “comments are all focused on the fact that the certifications fail to ensure the Projects
will comply with the VWQS and relevant state law. Applying the correct legal standard in making the
compliance determination is intrinsic to these comments.” Id.
In support of their position, Appellants cite to Champlain Parkway. No. 76-7-18 Vtec (Apr.
29, 2019) (Durkin, J.). In Champlain Parkway, the City of Burlington challenged a question on appeal
pursuant to 10 V.S.A. § 8504(d)(2)(A), arguing that it did not fit within the scope of the appellant’s
comments to ANR below. Id. at 9-10. The question on appeal addressed which iteration of the
relevant stormwater regulations applied to the project at issue. Id. The comment appellant submitted
to ANR asserted that the City’s application for a stormwater renewal permit should be treated as a
new application and the materials accompanying the application did not demonstrate compliance with

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the newer iteration of the stormwater regulations. Id. at 10. This Court concluded that the issue of
which version of the regulations applied was “intrinsic” to the comment submitted below because the
comment asserted the applicability of the newer regulations to the renewal application. Id. at 11
(“Implicit in this is the question of whether the [r]enewal [p]ermit needs to comply with the [newer
regulations] at all.”). Importantly, ANR’s response to the comment had “discussed the issue of which
version of the [regulations] applies.” Id. Given the facts presented in that case, it was clear that ANR
could, and in fact did, respond to the issue raised on appeal and that appellant complied with
§ 8504(d)(2)(A)(i). Id.
This Court has since reiterated this analysis of § 8504(d)(2)(A). See In re City of Rutland
WWTF NPDES, No. 22-ENV-00054, slip op. at 6 (Vt. Super. Ct. Envtl. Div. Jul. 28, 2023) (Walsh,
J.) (citing Champlain Parkway, No. 76-7-18 Vtec (Apr. 29, 2019) (Durkin, J.)). In the Rutland WWTF
case, the Court acknowledged that it has “adopted the principle applicable to Statements of Questions
which states that issues intrinsic to the questions in a Statement of Questions may be preserved for
review on appeal.” Id. (citation omitted). Notably, the Court reviewed the comments submitted to
ANR below and found, in relevant part, that “ANR [had] responded to the comment, and referred to
additional responses.” Id. The Court specifically found that ANR was “further aware of VNRC’s
position … as addressed by its responses to comments cited in its response to VNRC’s comment.”
Id. Thus, the Court concluded that dismissal of certain questions as non-compliant with
§ 8504(d)(2)(A) was not warranted. Id. at 7.
Both Champlain Parkway and Rutland WWTF rely in part upon the legislative purpose(s) of
§ 8504, set forth in 2015, No. 150 (Adj. Sess.), §5b, as discussed above. In amending § 8504, the
Legislature intended to both avoid an “overly technical approach to the preservation of issues” and to
identify “concerns about an application early” in the process below to provide the applicant and ANR
“an opportunity to address those concerns where possible” before a final permit is issued. Neither
Champlain Parkway nor Rutland WWTF stand for the principle that the Court is not bound by
technical compliance with § 8504(d)(2)(A). Rather, in interpreting whether an issue raised on appeal
satisfies the comment requirements of § 8504(d)(2)(A), those cases counsel striking a balance between
the statute’s dual purposes. This would allow issues to be raised on appeal that are “intrinsic to” or
“implicit in” a comment to ANR below, most notably when ANR did in fact address the intrinsically
raised issues in a manner that demonstrates that parties were sufficiently on notice of the underlying
issue in the proceedings below and had an opportunity to address them prior to issuing a final permit.

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Here, Appellants’ comments cannot be deemed to have “intrinsically” or “implicitly” raised
the issues within Questions 1 and 2.8 Although Appellants’ comments contain references to the “will
comply” standard, those same comments also neutrally, if not somewhat favorably, reference the
“reasonable assurance of compliance” standard. There is no challenge to ANR’s use of the reasonable
assurance standard, like that contained in Questions 1 and 2, that is reasonably implied therein.
Indeed, Appellants and ANR both reference the “will comply” and “reasonable assurance” standards
at various times in their comments and responses thereto. This appears to be consistent with the
language of Clean Water Act § 401 itself, which employs the “will comply” language in subsections
(a)(1) and (d), but also expressly references “reasonable assurance” in subsections (a)(3) and (a)(4).9
Put succinctly, the comments that Appellants submitted to ANR referencing the “will comply”
standard did not directly or indirectly put ANR or the Applicant on early notice that Appellants sought
to challenge the applicable regulatory standard or that Appellants believed “reasonable assurance of
compliance” was an “incorrect” standard, as referenced in Questions 1 and 2. This is further
evidenced by ANR’s responses to Appellants’ comments, which, unlike the facts presented in
Champlain Parkway or Rutland WWTF, do not indicate that ANR was aware of and had a meaningful
opportunity to respond to the “crux of the Questions before the Court.” See Rutland WWTF, No.
22-ENV-00054, slip op. at 6 (July 28, 2023) (Walsh, J.). Thus, even reviewing the comments for
intrinsic issues, Appellants did not identify concerns regarding the so-called reasonable assurance
standard with any particularity and instead appear to have (directly and indirectly) recognized the
standard.
This interpretation of the comments within the context of § 8504 attempts to balance the dual
purposes of the statute. Overall, Appellants had notice of the draft certifications and the language
contained therein, as well as the language of the VWQS themselves.10 Thus, the alleged dispute with
respect to the reasonable assurance standard was ascertainable at the time Appellants provided

8 As the Court has set forth above, the comments do not explicitly raise these issues.

9 While the Court makes no conclusion as to the merits of the dispute between the standards herein, it is notable

that these uses appear consistent with the U.S. Environmental Protection Agency’s (EPA) use of the two terms and general
treatment of the will comply and reasonable assurance standards as functionally equivalent, even though it states that the
“will comply” standard is more “loyal” to the language of § 401. Specifically, it states that “[t]he Agency has no theoretical
or empirical basis to conclude that the language in the final [2020] rule will materially change the way in which certifying
authorities, including the EPA, process certification requests, as long as certifying authorities act in good faith and in
accordance with CWA section 401.” 2020 Rule, 85 FR 42278.
10 VWQS §29A-206(b) provides in part: “A water quality certification shall not be issued unless the applicant

demonstrates all of the following: … (B)(2) There is reasonable assurance that the discharge will not result in a violation
of these rules, including any applicable water quality criteria and the Antidegradation policy articulated in these rules.”

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comments to ANR. Appellants, a majority of which were represented by counsel during the comment
period, did not comment specifically or promptly regarding this alleged dispute, either explicitly or
implicitly/intrinsically. By failing to take the step of identifying and articulating their concerns
regarding the reasonable assurance standard early in the process and with sufficient particularity,
thereby allowing a meaningful response by ANR, Appellants are precluded from appealing the issues
raised in Questions 1 and 2 now.
In their effort to avoid dismissal of Questions 1 and 2, Appellants contend that any deficiency
in their comments is excusable under 10 V.S.A. § 8504(d)(2)(B). They argue that ANR’s reliance on
the reasonable assurance standard “rendered this process [before ANR] defective,” thereby excusing
any obligation to comment on the regulatory standard.11 They assert that curtailing or limiting
Appellants’ right to raise Questions 1 and 2 based on their failure to comment on the regulatory
standard issue would result in “manifest injustice.” See 10 V.S.A. § 8504(d)(2)(B)(iv). Moreover, they
argue that ANR’s use of the reasonable assurance standard had the effect of voiding the entire
certification process, creating a “legal nullity” and depriving the Court of subject matter jurisdiction.
With respect to their assertion of a “legal nullity,” Appellants contend that ANR, in allegedly
applying the incorrect “standard of review” (i.e., “reasonable assurance of compliance” rather than
“will comply”) acted outside of its statutory authority and, as a result, its actions are void and we are
without subject matter jurisdiction. In support of this contention, Appellants cite to Vermont Dept.
of Pub. Serv. v. Massachusetts Mun. Wholesale Elec. Co., 151 Vt. 73 (1988) (MMWEC), In re Torres,
154 Vt. 233 (1990), and In re The Intervale Ctr., Inc., No. 89-5-08 Vtec (Vt. Super. Ct. Envtl. Div.
Feb. 24, 2009) (Durkin, J.), all of which generally stand for the proposition (more or less) that where
a public body or other tribunal exceeds or acts outside of its statutory authority, the extra-statutory
action is void (and, in certain instances, can have the effect of depriving a reviewing court of subject
matter jurisdiction).
This argument is without merit. First, and most importantly, for all the reasons set forth
above, a dispute regarding the standard of review should have been apparent to Appellants at the time
of public comment. Appellants did not comment on their alleged dispute. Appellants cannot
unilaterally declare ANR’s use or potential use of the reasonable assurance standard a legal nullity and
simply decline to comment on it. If Appellants believed that application of the reasonable assurance
standard was a “legal nullity” that would render all other actions void, Appellants had a statutory

11 This assertion is also raised within Appellants’ motion to vacate, addressed separately by the Court.

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obligation to identify that issue with particularity so that ANR could respond. None of the cases cited
abrogate Appellants’ obligations under § 8504(d)(2)(A) as Appellants argue.
Further, putting aside that ANR denies that the “will comply” and “reasonable assurance”
standards differ at all, or that it applied the incorrect standard, a critical distinction exists between
ANR arguably applying the wrong regulatory standard and acting entirely outside of its statutory
authority, rendering the entire permitting action null and void. No party disputes that ANR has the
authority to issue water quality certifications and to condition those certifications in accordance with
§ 401(d) to meet the requirements of the VWQS.12 This authority clearly distinguishes the present
appeal from the Intervale Center case, where this Court concluded that the Agency of Agriculture did
not have authority to issue land use permits or to otherwise condition its approval of the structure at
issue there. See No. 89-5-08 Vtec (Feb. 24, 2009) (Durkin, J.) It is not reasonably disputed that ANR
had statutory authority to approve the certifications with conditions.
Likewise, both MMWEC and Torres are not helpful to Appellants. First, in MMWEC, the
Vermont Supreme Court concluded that the contracting municipalities exceeded their delegated
municipal legislative authority by entering a contract that bartered away and/or restricted the exercise
of the municipalities’ legislative or police powers and, therefore, the underlying contract was ultra vires
and void ab inito. MMWEC, 151 Vt. at 81-82. In Torres, the Vermont Supreme Court held that notice
and hearing requirements for an application to a zoning board were mandatory and jurisdictional and
that “failure to adhere to these requirements renders the action taken null and void.” 154 Vt. 233, 236
(1990). The present circumstances bear no resemblance to either MMWEC or Torres. No unlawful
delegation of authority by ANR has occurred in connection with the certifications, nor is any such
delegation alleged, and there is no issue in this case regarding the notice provided by ANR on the draft
certifications, or its solicitation of comments on those drafts. ANR did not act outside of its authority
in this regard and Appellants’ “legal nullity” argument fails.
Finally, granting dismissal of Appellants’ Questions 1 and 2 will not result in a manifest
injustice as contemplated by 10 V.S.A. § 8504(d)(2)(B)(iv). Appellants fully participated in the
certification process below, receiving notice of the draft certifications and commenting extensively
thereon. Further, to request party status based on a procedural defect or manifest injustice requires
filing a motion in the Environmental Division within the time to file a statement of questions. 10

12
Notably, Appellants do not state anywhere in their filings with any specificity whatsoever how the
certification review process or its outcome would be different if ANR were to apply the regulatory standard that they
prefer.

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V.S.A. § 8504(d)(2)(B); V.R.E.C.P. 5(d)(2). “Failing to file a motion for party status in an appeal
pursuant to § 8504(d)(2)(B) is cause for dismissal.” In re Verizon Wireless Barton Act 250 Permit,
No. 6-1-09 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div. Feb. 2, 2010) (Durkin, J.) (internal citations
omitted). No such motion was filed in this case nor is this assertion (i.e., manifest injustice) raised
anywhere in Appellants’ multiple Notices of Appeal or Statements of Questions. Thus, their
assertions under this provision must be precluded.
Even if this were not the case, the Court is not aware of any other condition that would result
in “manifest injustice” if Appellants’ right to raise Questions 1 and 2 is disallowed. See 10 V.S.A. §
8504(d)(2)(B)(iv); In re Appeal of MDY Taxes, Inc., 2015 VT 65, ¶ 15 (“[T]his Court has not yet had
the opportunity to address what might constitute ‘manifest injustice’ . . . When we have addressed the
“manifest injustice” standard in other contexts we have recognized that it is an exacting and strict
standard.”). Despite the lack of clear case law on what constitutes a “manifest injustice,” our review
of the instances in which the term has arisen in Vermont case law indicates that manifest injustice
presents extraordinary circumstances where some mistake of fact or law will cause a significant harm
or loss of rights to a party if not remedied. See In re Granville Manufacturing Co., Inc., No. 2-1-11
Vtec, slip op. at 11 (Vt. Envtl. Ct. July 1, 2011) (Durkin, J.) (addressing the lack of clear definition of
“manifest injustice”).
Applying the manifest injustice standard strictly, as we must, this case does not present
extraordinary circumstances where some mistake of law or fact will result in significant harm to
Appellants if not remedied. As noted above, Appellants had ample opportunity to raise the issue of
the regulatory standard with ANR during the extensive public comment period in which they
participated. They did not avail themselves of that opportunity. Further, Appellants have not stated
with any specificity how the certification review process or its outcome would be different if ANR
were to strictly apply the “will comply” regulatory standard that they prefer. In the absence of this
information, no factual or legal basis exists to conclude that manifest injustice will occur if Appellants’
Questions 1 and 2 are dismissed. Thus, § 8504(d)(2)(B)(iv) does not present grounds for Appellants
to raise the issues set forth in Questions 1 and 2.
For all these reasons, the Court concludes that Appellants failed to comment on the issues
presented in Questions 1 and 2 such that they are precluded from raising these Questions on appeal
as set forth in 10 V.S.A. § 8504(d)(2)(A). Thus, both Questions must be DISMISSED as outside the
scope of this Court’s subject matter jurisdiction.

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Finally, while the Court concludes that Questions 1 and 2 must be dismissed for the reasons
above, it agrees with the Applicant and ANR that Questions 1 and 2 should alternatively be dismissed
because those questions are premised on an incorrect standard of review. As stated, Questions 1 and
2 focus on alleged failings of the Agency and the certification process below.
This Court hears this appeal de novo. See V.R.E.C.P. 5(g); 10 V.S.A. § 8504(h). As such, we
hear the case “as though no action whatever has been held prior thereto.” Chioffi v. Winooski Zoning
Bd., 151 Vt. 9, 11 (1989). “[Q]uestions related to alleged procedural or evidentiary shortcomings of
ANR below have no bearing on the final disposition of the case.” Rutland WWTF, No. 22-ENV-
00054, slip op. at 2 (July 28, 2023) (Walsh, J.).
To the extent that Questions 1 and 2 raise issues regarding the below process, they are not
properly before the Court.13 Given Questions 1 and 2’s focus on the certifications issued by ANR
and the process associated therewith, those Questions do not comport with our de novo hearing
standard.14
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. Applicant’s
motion to dismiss those questions pursuant to V.R.C.P. 12(b)(6) is therefore MOOT.
II. Questions 3–10, 12, 14, 16–18
Applicant argues in a series of footnotes in its motion to dismiss that Appellants have also
failed to comply with 10 V.S.A. § 8504(d)(2)(A)(ii) with respect to Questions 3 through 10, 12, 14, and
16 through 18 because they have not identified in this appeal which of their comments submitted
below support those Questions. See 10 V.S.A. § 8504(d)(2)(A)(ii) (“The appellant shall identify each
comment that the appellant submitted to … [ANR] that identifies or relates to an issue raised in his
or her appeal”). Applicant suggests that dismissal may be warranted under V.R.C.P. 12(b)(1) on this
basis. However, Applicant also indicates that it has identified “on its own reconnaissance” comments
by Appellants that may relate to the questions raised in the Statement of Questions.
First, 10 V.S.A § 8504(d)(2)(A)(ii) does not specify how and when an appellant is required to
identify each comment submitted to ANR. Further, and most importantly, Applicant concedes that

13 Appellants’ proposed amendment to Question 2 does not change this result. Nor does the proposed

amendment alter the fact that Appellants have failed to properly comply with § 8504(d)(2)(A) by failing to raise, explicitly
or intrinsically, the contents of Question 2 below. Therefore, Appellants’ motion to amend Question 2 is DENIED as
futile. Colby v. Umbrella, Inc., 2008 VT 20, ¶ 4.
14 In reaching this conclusion, the Court notes that Appellants are free to advocate for what they believe to be

the appropriate regulatory standard(s) in the context of the Court’s de novo hearing on any issues properly raised by the
Statement of Questions.

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Appellants made comments that it believes “may relate” to the questions raised and ANR has not
asserted an absence of comments related to the issues raised. Applicant, as movant, has the burden
of proving that this requirement has not been met. 10 V.S.A. § 8504(d)(2)(A)(iii). The Court
DENIES Applicant’s motion to dismiss Questions 3 through 10, 12, 14, and 16 through 18 pursuant
to V.R.C.P. 12(b)(1) for failure to identify each comment that relates thereto.15
III. Appellants’ Motion to Amend Statement of Questions
Appellants filed their original Statement of Questions on June 5, 2025. Thereafter, on October
10, 2025, Appellants moved to amend their Statement of Questions in response to the Applicant’s
motion to dismiss. Applicant opposes the motion, arguing that the proposed amendments fail to
address various perceived shortcomings in the original Statement of Questions.
We may grant a motion to amend a Statement of Questions pursuant to V.R.E.C.P. 5(f). As
with motions to amend complaints under V.R.C.P. 15, we generally take a liberal view in reviewing
motions to amend Statements of Questions. Buchwald Home Occupation CU Permit, No. 181-12-13
Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Apr. 1, 2014) (Walsh, J.). We may, however, deny a
motion to amend if there “has been undue delay or bad faith by the moving party, [if]
the amendment will prejudice other parties, [or if] the amendment is futile.” Id. (citing Colby, 2008
VT 20, ¶ 4). We may also deny a motion on grounds of prejudice, “for example, where a motion to
amend [is] submitted after trial, after a statement of questions [has] already been amended, or after a
motion for summary judgment [has been] denied.” In re All Metals Recycling, Inc. Discretionary
Permit Application, No. 171-11-11 Vtec, slip op. at 10 (Vt. Super. Ct. Envtl. Div. Apr. 23, 2012)
(Walsh, J.). Since the motion to amend here, by its express terms, is a response to the Applicant’s
motion to dismiss, the Court will evaluate the proposed amendments in conjunction with its review
of the remaining aspects of Applicant’s motion to dismiss (or clarify) to determine whether the
proposed amendments are sufficient to cure the alleged deficiencies in the Questions raised, and/or
provide sufficient clarity to put Applicant, ANR and the Court on notice regarding the issues
Appellants seek to adjudicate in this appeal.
a. Questions 13 and 15

15 In its October 24, 2025 Reply filing, Applicant identifies additional questions (i.e., Questions 3, 9, 10, 11, 16,

18) about which it contends Appellants failed to comment (or adequately and specifically comment) to ANR. For the
same reasons as the above-referenced Questions, and because Applicant makes this argument for the first time in a Reply
filing (and not by separate motion filed under V.R.C.P. 7(b)), the Court declines to consider it at this time.

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As a preliminary matter, Appellants’ motion to amend withdraws their original Questions
13 and 15. No party objects and, therefore, Questions 13 and 15 are WITHDRAWN and Applicant’s
motion to dismiss as it relates to those questions is MOOT.
b. Questions 5 and 6
Applicant moves to dismiss Questions 5 and 6 as improper under the Court’s de novo hearing
standard of review, as discussed above. Appellant seeks amendment of these same Questions.
Original Question 5 states: “Whether the WQCs condition requiring post-certification
development of a recreation plan is an unlawful condition subsequent, and whether a condition relying
on a recreation plan that does not yet exist will assure the applicant's compliance with VWQS and
other appropriate requirements of state law regarding recreational uses.”
Original Question 6 states: “Whether the WQCs condition requiring post-certification
development of a recreation plan circumvents the public's right to notice and comment under the
CWA and federal and state law implementing the CWA.”16
The Court agrees that these questions, as stated, are not consistent with this Court’s de novo
hearing standard because they ask the Court to evaluate the correctness of a condition regarding
recreation plan development imposed by ANR, rather than asking the Court to consider anew the
propriety of granting the certifications subject to any particular condition(s). As stated, Question 6
also appears to assert third-party standing on behalf of others, which is generally disallowed. Baird v.
City of Burlington, 2016 VT 6, ¶ 15; see also Warth v. Sending, 422 U.S. 490,499 (1975) (explaining
that a litigant “cannot rest his claim to relief on the legal rights or interests of third parties.”). While
Appellants’ proposed amendments contain citations to regulations/laws they assert are applicable to
the issues raised in Questions 5 and 6, the amendments do not rectify these standard of review issues.
Because the Court believes it is possible to raise the issues within these Questions in a manner that
does not offend the de novo standard of review in this matter, and potentially falls within the bounds
of Appellants’ standing, the Court DENIES Applicant’s motion to dismiss Questions 5 and 6 but
GRANTS its motion to clarify the same. Appellants shall have 14 days from the date of this decision
to further revise and clarify Questions 5 and 6 to reflect this Court’s de novo hearing standard and, as
further discussed below, to cite to any other specific provisions of the VWQS (or other requirements
of law) that they believe regulate the subject of these Questions (and that are at issue).
c. Questions 3–12, 14, and 16–18

16 Appellant has proposed to amend Questions 5 and 6, primarily by adding citations/references to the VWQS,

but the fundamental Questions remain unchanged.

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Applicant also moves to dismiss Questions 3 through 12, 14, and 16 through 18 pursuant to
V.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The standard of review
for such a motion is set forth above.
While framed as a motion to dismiss under Rule 12(b)(6), Applicant principally argues
throughout its motion that the referenced Questions fail to include specific citations to provisions of
the VWQS that give rise to Appellants’ asserted claim(s). As a result, Applicant further contends that
these Questions are insufficiently clear. Because the motion functionally argues a lack of clarity in
these Questions, the Court construes these arguments primarily as a motion to clarify questions under
V.R.E.C.P. 5(f), which the Applicant seeks as an alternative to dismissal.
We will direct a party to clarify its questions under our Rule 5(f) when necessary to ensure that
“the claims have enough specificity to notify the opposing party and the court of the issues on appeal.”
In re Atwood Planned Unit Dev., 2017 VT 16, ¶ 14 (citation omitted); In re Couture Subdivision
Permit, No. 53-4-14 Vtec, slip op. at 2-3 (Vt. Super. Ct. Envtl. Div. July 17, 2015) (Durkin, J.)
(dismissing a question that did not reference any specific provisions, just the applicable regulations
generally). The Statement of Questions, however, is not a mechanism to argue one's claims. In re
Conlon CU Permit, No. 2-1-12 Vtec, slip op. at 1 (Vt. Super Ct. Envtl. Div. Aug. 30, 2012) (Durkin,
J.). With this framework in mind, we turn to Appellants’ questions, both as originally filed and
proposed for amendment, to determine whether they satisfy the requisite standards.
The Court could individually address each of Appellants Questions, as originally proposed and
as amended, but finds it unnecessary to undertake a lengthy and likely redundant analysis. It is
sufficient to state that most, if not all of Appellants’ Questions as originally proposed were
unreasonably vague because they were almost completely devoid of citations to the VWQS or other
specific provisions of law, and many of the Questions did not comport with our de novo hearing
standard. Therefore, to the extent that Applicant has moved to dismiss or clarify those original
Questions, the Court agrees that while outright dismissal is not warranted currently, further
clarification is appropriate and Applicant’s request for such clarification is GRANTED.
Appellants have proposed to amend their Statement of Questions by adding citations to the
VWQS and other statutory or regulatory provisions, thereby providing or attempting to provide
further clarification. Some of these citations are specific and provide reasonable notice of the issues
that Appellants seek to raise. For example, some Questions as amended contain citations to discrete
standards of review or provisions of the VWQS that they seek adjudication of in this appeal. The
Court appreciates Appellants’ attempts to clarify the scope of the issues on appeal. This does not

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change the fact, however, that most if not all of Appellants’ amended Questions also contain overly
broad citations to the VWQS (or other statutory or regulatory provisions) and/or “catch-all” language
that does not provide reasonable notice of the issues that Appellants seek to raise. Examples of this
linguistic practice consist of: 1) repeated use of the word “including,” which implies that other legal
provisions may be relevant to the Question; 2) references to “appropriate requirements of law”
without any further indication of what those are or how they apply; 3) citations to provisions of the
VWQS that are multiple paragraphs or pages long, such as the antidegradation policy; 4) citations to
general criteria applicable to all waters, and 5) citations to entire statutory chapters or subchapters
(e.g., “subchapter 3” or “10 V.S.A. Ch. 123”). Further, many of Appellants’ Questions, as proposed
for amendment, continue to focus on the proceedings below and are not consistent with our de novo
hearing standard of review.17
Accordingly, Appellants’ Motion to Amend their Statement of Questions is GRANTED IN
PART and DENIED IN PART for these reasons. While providing some clarity as compared to
the original Questions, the amendments do not sufficiently cure existing deficiencies. At the same
time, the Court recognizes that Appellants have provided some Questions and regulatory provisions
that are highly likely to be properly before the Court and sufficiently raised as amended. As such, the
Court does not conclude that general amendments to the Questions would be futile at this time and
does not intend to prematurely foreclose Appellants’ ability to seek adjudication of the issues that they
have properly raised through their first attempted amendment. Appellants shall have 14 days from
the date of this decision to further amend their Statement of Questions to provide more specific
citations, without “catch all” language, as described above. If Appellants’ further amended Statement
of Questions contains “catch all” or similarly broad language or citations, the Court will not consider
it. The Court will then evaluate the certification applications de novo, under only those provisions of
the VWQS (or other regulatory provisions) that Appellants have specifically cited. Appellants are
further directed to avoid propounding duplicative Questions to the extent they presently exist.
d. Questions 8 and 16
In its motion to dismiss, Applicant argues, inter alia, that this Court has no jurisdiction over
the so-called Fish Passage Agreement (the Agreement) entered into between certain State and federal
fish and wildlife authorities and Applicant, and that Questions 8 and 16 (which potentially implicate

17 For example, proposed amended Question 8 references facts and circumstances “as anticipated in the WQCs”

which constitute legal argument and that are not consistent with our de novo hearing standard. Multiple other questions
contain references to certification conditions that (presumably) are presently on appeal.

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that Agreement) should be dismissed. The Court agrees that it has no jurisdiction over the Agreement,
or over any Memorandum of Understanding (MOU) referenced therein. Those agreements and the
enforcement thereof are matters outside the scope of this Court’s jurisdiction. In re DJK LLC, WW
& WS Permit, 2024 VT 34, ¶ 25 (“The Environmental Division is a court of limited jurisdiction”); 4
V.S.A. § 31. However, the existence of the Fish Passage Agreement and its contents, as well as any
related MOU, are facts that may be relevant to issues properly raised by Appellants on appeal. It is
premature to determine whether and how those documents may be relevant to the Court’s analysis,
particularly given that Appellants may further amend their Statement of Questions as set forth herein.
The Court is disinclined to dismiss Questions 8 and 16 at this time based solely on its lack of authority
over the agreements. Applicant’s motion to dismiss on that basis is DENIED. No aspect of this
decision should be construed as a conclusion of this Court that it can definitively adjudicate issues
related to these Questions; rather, the Court is reserving judgment on that matter pending additional
clarification.
Further, Applicant argues that Questions 8 and 16, as well as numerous other Questions, are
duplicative and that certain Questions should be dismissed on that basis. Again, it is premature to
evaluate whether any duplication of Questions exists until Appellants have had the opportunity to
further amend their Statement of Questions. To the extent that Questions address the same issues,
or broadly stated Questions are duplicative of the more precise issues raised by other Questions, the
Court has the ability, if necessary, to combine or eliminate Questions to provide for efficient
evaluation of the issues raised without unnecessary duplication or redundancy. Given that Appellants
are still working to articulate and clarify their issues, however, and they have been directed to avoid
duplication in this process, it is too soon to undertake that task. Therefore, Applicant’s motion to
dismiss for reasons of duplication is DENIED at this time.
Conclusion
For the foregoing reasons, Applicant’s motion to dismiss Questions 1 and 2 is GRANTED.
Applicants’ motion to dismiss the remaining Questions is DENIED. Its motion for clarification is,
however, GRANTED and Appellants are directed to file their further clarified Questions pursuant
to the guidance set forth herein. Similarly, Appellants’ motion to amend their Statement of Questions
is GRANTED IN PART and DENIED IN PART, as provided herein. Appellants must submit
their further-clarified Statement of Questions within 14 days of the date of this decision. In so
concluding, the Court notes that Questions 13 and 15 have been WITHDRAWN.

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Electronically signed on December 4, 2025, pursuant to V.R.E.F. 9(d).

Joseph S. McLean
Superior Court Judge
Environmental Division

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