## Facts

- Kidder Brook is an upland stream in Jamaica and Stratton, Vermont.
- Stratton Corporation owned land on both sides of Kidder Brook, held six land-use permits, and had long-term development plans in the area.
- Neighboring landowners and a citizens’ group petitioned the Vermont Water Resources Board to reclassify a reach of Kidder Brook from Class B to Class A, imposing higher water-quality standards.
- The Board initiated notice-and-comment rulemaking under the Vermont Water Pollution Control Act and the Vermont Administrative Procedure Act (VAPA): it published a proposed rule, held a public hearing, and set (and extended) a deadline for written comments.
- Stratton objected that reclassification could impair its permits and plans and argued due process required a formal, trial-type contested-case hearing rather than rulemaking procedures.
- Stratton presented oral testimony at the hearing and submitted extensive written materials, including engineering submissions describing its permits and development plans.
- The Board adopted the rule reclassifying the specified portion of Kidder Brook to Class A.
- Stratton challenged the procedure in superior court; the superior court dismissed, concluding the action was rulemaking not subject to contested-case procedures.

## Issues

1. Whether due process required the Board to use formal, trial-type contested-case procedures rather than notice-and-comment rulemaking to reclassify a waterway.
2. Whether the Board’s reclassification decision was rulemaking or an adjudication under Vermont administrative law.
3. Whether Stratton’s procedural challenge was properly dismissed because review must proceed through mechanisms applicable to rules.

## Decision

- The Vermont Supreme Court affirmed the dismissal.
- The Court held that reclassification of waters under the governing statute is legislative-type rulemaking, not an adjudication.
- The Court held that due process did not require trial-type procedures for this rulemaking.
- The Court concluded the notice-and-comment process used—publication, public hearing, and opportunity for written submissions—provided an adequate opportunity to be heard.

## Legal Principles

- When a statute authorizes classification and reclassification of waters “by rule,” the agency action is rulemaking governed by VAPA rulemaking procedures, not a contested case.
- Due process generally does not require cross-examination, formal evidentiary rules, or other trial-type procedures in legislative rulemaking; reasonable notice and an opportunity to comment ordinarily suffice.
- Economic impact on a particular landowner, including potential effects on permits or development expectations, does not convert a generally applicable, prospective environmental standard into an adjudication of individual rights.
- Courts will not require an agency to conduct contested-case proceedings when the agency is engaged in bona fide rulemaking and has followed the procedures prescribed for rules.

## Conclusion

The court upheld the Board’s use of notice-and-comment rulemaking to reclassify Kidder Brook to a higher protection class, holding that the action was legislative rulemaking and that due process was satisfied without a trial-type contested-case hearing even though Stratton claimed its permits and development plans could be affected.


In re Appeal of Stratton Corp., 157 Vt. 15, 600 A.2d 297 (Vt. 1991)