                                      State of Vermont
                           Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Waitsfield Source Permit                                  Docket No. 128-8-11 Vtec
(Appeal from ANR decision granting a public water supply source permit)

Title: Motion to Dismiss (Filing No. 1)
Filed: October 5, 2011
Filed By: Joseph S. McLean, Attorney for Appellee/Applicant Town of Waitsfield
Response in opposition filed on 10/27/11 by Paul S. Gilles, Atty for Appellant Virginia Houston
Reply filed on 11/4/11 by Joseph S. McLean, Atty for Appellee/Applicant Town of Waitsfield


  X Granted (in part)                     X Denied (in part)               ___ Other

       Virginia Houston appeals the July 29, 2011 grant of a Source Permit by the Vermont
Agency of Natural Resources, Department of Environmental Conservation (“DEC”) to the
Town of Waitsfield (“Applicant”) approving the construction of a proposed public water
supply well. Prior to receiving the current permit, Applicant held two previous DEC source
permits for construction of the same well. These permits were the subject of prior appeals by
Ms. Houston that this Court dismissed following motions by Applicant. See In re Waitsfield
Water Supply Source Permit, No. 134-7-08 Vtec (Vt. Envtl. Ct. July 14, 2009) (Durkin, J.); In re
Waitsfield Water Supply Permit, No. 253-12-09 Vtec (Vt. Envtl. Ct. Feb.10, 2010) (Durkin, J.).
        Applicant now moves for dismissal of the current appeal, arguing that the most recent
permit is identical to the previous ones issued by DEC and that the same reasons for dismissal
apply in this appeal as applied in the two previous appeals. Applicant also seeks attorney’s fees
for the work that it has put into filing its motion to dismiss.
       We agree with Applicant that the legal issue presented here is essentially the same as
was presented in the two previous appeals we adjudicated. That is, Ms. Houston’s Statement of
Questions does not contest the Findings or Conclusions that DEC reached in issuing the Source
Permit. Instead, she questions whether Applicant has ownership and control of the property on
which the well is to be located.
        As we concluded for the previous source permits that we addressed in the prior appeals,
we understand Condition 5(i) of the most recent Source Permit to require Applicant to establish
ownership and control of the lands specified in the permit prior to and during the use and
operation of the public water supply well. The permit itself does not establish such ownership
and control. However, as we explained in our July 14, 2009 decision in Waitsfield Water Supply
Source Permit, neither DEC nor this Court has the jurisdictional authority to adjudicate
property ownership disputes. No. 134-7-08, slip op. at 2. Any dispute concerning the
ownership or control of the property on which the well is to be located lies within the
jurisdiction of the Civil Division of the Superior Court.
In re Waitsfield Source Permit, No. 128-8-11 Vtec (EO on Mot. to Dismiss) (11-16-11)                    Pg. 2 of 2.


        Because Ms. Houston’s Statement of Questions in this appeal solely concerns the issue of
property ownership and control, there is no legal issue presented here that we have the
jurisdiction to entertain. In her memorandum opposing Applicant’s motion to dismiss, Ms.
Houston expresses new concerns about the impact of Hurricane Irene on the water system to
which the well is to be connected. However, that issue was neither raised in Ms. Houston’s
Statement of Questions nor appears to fall within the scope of the Source Permit before us on
appeal. The Source Permit clearly states that separate permits are required to both connect the
well to a water system and to operate that water system.
       For the foregoing reasons, we GRANT Applicant’s motion to DISMISS the appeal in
Docket No. 128-8-11 Vtec. However, we DENY Applicant’s request for attorney’s fees as we
find no reason to award them here. Ms. Houston was entitled to appeal the issuance of a new
source permit by DEC; her appeal is not abusive to the Court or Applicant.
        This Entry Order concludes the matter in Docket No. 128-8-11 Vtec. The Source Permit
issued by DEC on July 29, 2011 is now final, and its two-year validity commences from the date
of this Entry Order.



_________________________________________                                         November 16, 2011            _
       Thomas S. Durkin, Judge                                                         Date
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Date copies sent to: ____________                                            Clerk's Initials _______
Copies sent to:
  Paul S. Gillies, Attorney for Appellant Virginia Houston
  Joseph S. McLean, Attorney for Appellee/Applicant Town of Waitsfield
  Anne F. Whiteley, Attorney for Interested Person Agency of Natural Resources
  For Information Purposes Only, Melanie Kehne, Vermont Natural Resources Board/Land Use Panel
