### Costco Act 250 Permit Amend. Jurisdictional Opinion (#4-252)

ENTRY REGARDING MOTION

Act 250 Jurisdictional Opinion (157-12-16 Vtec)

Title: Motion for Summary Judgment Concerning Stan ding (Motion 4)

Filer: Cross-Appellant Costco Wholesale Corp.

Attorney: Mark G. Hall

Filed Date: June 15, 2017

Response in Partial Support filed on 07/17/2017 by Attorney Gregory J. Boulbol for
the Vermont Natural Resources Board Response in Opposition filed on July 17, 2017 by At torneys Jon T. Anderson and Alexander J.
LaRosa for Appellant R.L. Vallee Reply in Support of SJ Motion filed on 08/21/2017 b y Attorney Mark G. Hall for Cross-Appellant Costco Wholesale Corp.

**The motion is MOOT.**

The pending appeal was filed by Appellant R.L. Vall ee (“Vallee”) from Jurisdictional Opinion #4-252 issued by the Coordinator for the Di strict 4 Environmental Commission (“District Coordinator”), who concluded that certain revisions to the stormwater treatment system proposed by Costco Wholesale Corp. (“Costco”) did n ot constitute a change under Act 250 Rule 34(A) that was material enough to require Costco to apply for and receive an amendment to its

Act 250 Permit.

Costco’s latest Act 250 Permit (No. 4C0288–19C), is sued by the District Commission in 2013, authorized certain expansions at the already- developed Costco property in Colchester, Vermont. Vallee appealed that permit amendment det ermination to this Court, together with appeals from several other determinations concernin g Costco’s proposed expansions. After trial, this Court affirmed the various permit determinatio ns in Costco’s favor, including improvements to its proposed stormwater treatment system. When Vallee and other parties appealed this Court’s merits decision, the Vermont Supreme Court affirmed. In re Costco, 2016 VT 86 (Aug. 5, 2016). 

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## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 157-12-16 VtecCostco Act 250 Permit Amend. JO, No. 157-12-16 Vtec (EO on Costco SJ Motion on Standing) (Dec. 8, 2017) p. 2 of 3.

After the conclusion of that litigation, Costco mad e a change to the manner in which the already-treated stormwater would be transmitted to Sunnyside Brook, which is recognized as a state water. That change required Costco to seek a n amendment to its stormwater permit. 1 When the Vermont Agency of Natural Resources (“ANR” ) granted Costco an administrative amendment to its stormwater permit (referred to as Permit No. 4114-9015.2A), Vallee appealed
that determination to this Court. After a merits h earing, this Court issued a Judgment Order affirming ANR’s administrative amendment of Costco’ s stormwater permit. See Costco Stormwater Permit Amendment Appeal, No. 84-7-15 Vte c (Vt. Super. Ct. Envtl. Div. Jul. 29, 2016) (Durkin, J.). When no party to that appeal, includ ing Vallee, appealed our Judgment Order, ANR’s
administrative amendment became final.

Vallee secured party status in the Act 250 permit a ppeal under Act 250 criteria 1, 1(A), 1(B), 1(E), 1(G), and 4. 2 Vallee also secured party status in the Stormwate r Permit Amendment Appeal before this Court.

In the appeal now pending before this Court (Docket No. 157-12-16 Vtec), Costco challenges Vallee’s status as an interested person that has a right to appeal the jurisdictional opinion issued by the District Coordinator. In res ponse, Vallee principally relies upon it status as an interested party in the prior appeals. We consi der a challenge to standing as requiring an independent inquiry in each new litigation. See In re Marcelino Waste Facility, No. 44-2-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. Mar. 21, 2008) (Durki n, J.). Given that the pending appeal concerns changes that we concluded were minor in the Stormwa ter Permit Amendment Appeal, and that Vallee has presented no evidence in the pending app eal as to how the outflow changes that we have determined to be minor could possibly have any impact upon Vallee, we have difficulty agreeing with Vallee’s assertion that it has standi ng in this independent appeal.

However, given the long history and multiple chapte rs of the litigation concerning the proposed Costco expansion plans, 3 this Court has chosen to address the various subst antive motions in this current appeal. Issued contemporan eously with this Order is a Decision that addresses the motion for summary judgment filed by the Vermont Natural Resources Board concerning the sole legal issue raised in Vallee’s Statement of Questions. We have also today issued two separate Entry Orders addressing motions filed by Vallee and Costco on that same singular legal issue.

For all these reasons, we conclude that Costco’s mo tion challenging Vallee’s standing to file this appeal of the District Coordinator’s Juri sdictional Opinion (#4-252) is now **MOOT** , given that we have rendered judgment upon the sole legal issue presented in this appeal. A Judgment Order accompanies this Entry Order.

1 The previously-approved stormwater permit is Perm it No. 4114-9015 and is titled “Vermont Department
of Environmental Conservation Authorization to Disc harge under General Permit 3-9015.”

2 See 10 V.S.A. § 6086(a) for a complete list of the Act 250 criteria and sub-criteria.

3 The pending appeal represents the fourteenth appe al presented to this Court of permit or other determinations concerning the proposed Costco expan sion plans.Costco Act 250 Permit Amend. JO, No. 157-12-16 Vtec (EO on Costco SJ Motion on Standing) (Dec. 8, 2017) p. 3 of 3.

**So Ordered.**

Electronically signed on December 08, 2017 at Newfa ne, Vermont, pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Superior Judge

Notifications: Jon T. Anderson (ERN 1856), Attorney for Appellant R.L. Vallee, Inc. Alexander J. LaRosa (ERN 5814), Co-Counsel for Appe llant R.L. Vallee, Inc. Gregory J. Boulbol (ERN 1712), Attorney for the Ver mont Natural Resources Board Mark G. Hall (ERN 2537), Attorney for Cross-Appella nt Costco Wholesale Corp.

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