In no uncertain terms, the Vermont Environmental Court refuted Virginia Houston’s last two arguments in her appeals of Waitsfield’s Act 250 permit for its municipal water project.
The Environmental Court decision, issued July 11, upholds the town’s Act 250 permit for the project. At issue was Houston’s appeal of 2 of the 10 Act 250 review criteria. Waitsfield received its Act 250 permit for the project in February 2010.
Waitsfield is developing a municipal water system that uses water from a well drilled on Reed Road. Houston owns property that abuts the town well and has been in litigation with the town over the particulars of the water project well on Reed Road since the town drilled that well in 2004.
When the town drilled the well, it did so under the belief that Reed Road was a town road. In November 2010, a Vermont Superior Court judge ruled that the town had not presented sufficient evidence to show that the road was a town road, leaving Waitsfield to negotiate with Houston and another landowner, Jean Damon, over two small parcels of land, both under a half acre.
In January 2011, the town began negotiations and simultaneously began eminent domain proceedings with both landowners. Last summer, the town reached an agreement with Damon and purchased the piece of her property it needed to access its well.
The case before the Environmental Court was over 2 of the 10 Act 250 review criteria, criteria 3 (impact of a project on existing water supplies) and criteria 5 (impact of a project upon means of transportation).
Regarding the impact of the water project on existing water supplies in general and on the well on Houston’s property specifically, the Environmental Court rejected Houston’s argument that the town’s well and use of Reed Road would impact her stated desire to develop a commercial water supply facility on her project.
“Appellant suggests that her operation would involve water being trucked from her well site, that these trucks would use Reed Road to access her well, and that the trucks would transport water from the well to an off-site bottling facility. Appellant does not yet have the facilities, permits, or contracts for such an operation, including those needed to deliver the well water to the trucks outside of her own well isolation zone,” the court noted in its findings.
It further noted that “the town’s expert credibly testified that the aquifer that both the town’s well and Houston Well 2 tap are recharged with ground water in such a significant amount that the operation of the town’s well will not impact appellant’s ability to draw water from one or more of her wells, even at the maximum withdrawal rate allowed by her source permit.”
Regarding the impact of the town’s water project on roads and means of transportation, the court found that once construction is complete, the town’s water system will cause little to no additional traffic on public highways.
Regarding traffic, the court found that Houston’s concerns under criteria 5 were based on “fear that the town’s operation of its well will restrict or prohibit her continued access to her properties in general and her use of Reed Road in particular. We find no support for either concern in the credible evidence presented at trial. The improvements to Reed Road that the town plans in connection with this project will actually enhance the ability of the appellant and others to use Reed Road for access. Moreover, the town has explicitly represented that its use of Reed Road will not inhibit appellant or Ms. Damon’s use of the road. In its current condition, Reed Road is not easily used for any purpose, by anything other than four-wheel-drive vehicles and walkers with sturdy boots,” the court noted.
Construction on the last phase of Waitsfield’s water project, connecting users to the water mains, should be underway shortly. The town hopes to receive final details from the USDA Rural Development on a grant/loan package to fund project cost overruns (including legal costs that exceeded budgeted amounts) and sign a contract to start the final phase by next Tuesday, July 24. The project’s completion date is November although it is possible that users will be brought online prior to November.
