1 

R.L. Vallee, Inc.et al MS4 

ENTRY REGARDING MOTION

Title: Motion to Dismiss (Motion 4) 

Filer: Agency of Natural Resources 

Attorney: Hannah W. Smith 

Filed Date: April 12, 2017 

Response filed on 04/13/2017 by Attorney Justin E. Kolber for Interested Person SOV AOT 

 Support 

Response filed on 04/27/2017 by Attorney Alexander J. LaRosa for party 3 Co-counsel 

 Opposition 

This is an appeal from a September 8, 2016 letter written by the Agency of Natural 

Resources (ANR) regarding a Municipal Separate Storm Sewer System (MS4) permit. The matter 

is now before the Court on ANR’s motion to dismiss for lack of subject matter jurisdiction.1

 

Standard of Review 

In considering a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, we 

accept “all uncontroverted factual allegations of the complaint”2 as true, and construe those 

allegations in the “light most favorable to the nonmoving party.” Rheaume v. Pallito, 2011 VT 72, 

¶ 2, 190 Vt. 245 (citing Jordan v. State Agency of Transp., 166 Vt. 509, 511 (1997)). 

Background 

The following factual background is given solely for the purpose of deciding this motion 

to dismiss. 

In 1999, pursuant to the Clean Water Act (CWA), the federal Environmental Protection 

Agency promulgated regulations extending the National Pollution Discharge Elimination System 

(NPDES) permitting requirements to stormwater discharges from small municipal separate 

stormwater sewer system (MS4s) in urbanized areas. Regulated MS4s were required to obtain 

 

1

 The Vermont Agency of Transportation, by a letter to the Court dated April 13, 2017, indicated that it joins 

in support of the motion to dismiss. 

2

 In matters that come before us without a complaint being filed, as here, it is our practice when considering 

motions to dismiss to “assume that all factual allegations made by the non-moving party are true and that all 

contravening assertions made by the moving party are false,” without specifically being limited to a complaint. In 

re G & D, LLC Permit Application, No. 125-9-13 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Nov. 7, 2013) (Walsh, J.) 

(citing Richards v. Town of Norwich, 169 Vt. 44, 49 (1999)); Buchwald Home Occ. Cond. Use Permit, No. 181-12-13 

Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Apr. 1, 2014) (Walsh, J.). 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Docket No. 122-10-16 Vtec
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NPDES permit coverage for their stormwater discharges. In Vermont, ANR enforces the NPDES 

system. In re Stormwater NPDES Petition, 2006 VT 91, ¶ 2, 180 Vt. 261. 

In 2003, ANR issued Small Municipal Separate Storm Sewer System General Permit No. 3-

9014 (the MS4 General Permit) to cover stormwater discharges from eight municipalities and 

three additional entities, including VTrans. See In re Small Municipal Separate Storm Sewer 

Systems (MS4s), Nos. WQ-03 and WQ-04-03, Memorandum of Decision (Vt. Water Res. Bd. Jul. 

21, 2005). 

Pursuant to the terms of the MS4 General Permit, VTrans submitted a Stormwater 

Management Plan (SWMP) to ANR. In late 2013, ANR authorized VTrans to discharge according 

to the plan. 

In May 2016, Attorney Anderson sent a letter to ANR alleging that VTrans was violating 

Section IV.C.2 of the MS4 General Permit by discharging phosphorus into Lake Champlain via 

Sunnyside Brook in Colchester. 

Padraic Monks, Stormwater Program Manager for the Department of Environmental 

Conservation at ANR, sent a reply letter dated September 8, 2016 (the letter). The letter explains 

that VTrans’ SWMP had been approved in 2013, and that because that approval was not appealed 

it is now final. He also explains that phosphorus discharges into Lake Champlain will soon be 

addressed through wasteload allocations under recently-approved Total Maximum Daily Load 

(TMDL) requirements. He further states that ANR plans to replace the MS4 permit with a reissued 

MS4 permit, and shift VTrans’ authorization to discharge to a transportation separate 

stormwater sewer system (TS4) permit, which will require VTrans to complete a phosphorus 

control plan to ensure compliance with TMDLs.3 

R.L. Vallee, Inc., Tim Vallee, Amy Norris, and Rodolphe J. Vallee, Trustee of the Rodolphe 

J. and Elizabeth W. Vallee Trust (collectively Vallee), appealed the “rulings contained” in the 

September 8, 2016 letter insofar as “[t]he Letter allows VTrans to keep discharging phosphorus 

into Lake Champlain.” Notice of Appeal at 1. Vallee’s statement of questions asks whether 

VTrans is complying with the MS4 General Permit; and asks what VTrans must do to comply with 

Section IV.C.2 of the MS4 General Permit. 

Discussion 

In its motion to dismiss, ANR submits that the September 8, 2016 letter is related to a 

potential enforcement action brought pursuant to title 10, chapter 201.4

 ANR offers that Vallee’s 

appeal to this Court is brought pursuant to title 10, chapter 220, which deals with consolidated 

environmental appeals. That chapter excludes enforcement actions under title 10, chapter 201 

from the list of statutory provisions under which an appealable act or decision may arise. 10 

V.S.A. § 8503(a). 

Vallee responds that this appeal is brought pursuant to title 10, chapter 47—not chapter 

201. Chapter 47 contains a separate enforcement provision allowing ANR to enforce compliance 

with violations of chapter 47. 10 V.S.A. § 1274. Furthermore, chapter 47 contains a provision 

allowing appeals of any act or decision by ANR made under chapter 47 to be appealed in 

accordance with title 10, chapter 220. 10 V.S.A. § 1269. The chapter governing consolidated 

 

3

 This TS4 Permit is before the Environmental Division via a Vallee appeal. In re RL Vallee, Inc., et al. TS4, 

No. 7-1-17 Vtec. 

4

 The notice of appeal does not state the provision of law that the appeal is brought under. 
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appeals confirms that the Environmental Division has the authority to hear appeals of any act or 

decision made under chapter 47. 10 V.S.A. §§ 8503(a)(1)(E) and 8504(a). Vallee argues that the 

September 8, 2016 letter is an act or decision made under chapter 47 and, as such, is subject to 

appeal in this Court. 

We conclude that the Environmental Division is without subject matter jurisdiction over 

this appeal. If this appeal is brought under title 10, Chapter 201, ANR’s letter is a decision related 

to an enforcement action expressly excluded from matters that may be appealed, and the 

Environmental Division has no jurisdiction over this appeal. If the appeal is brought under 

chapter 47, ANR has enforcement discretion which is not subject to judicial review. 

First, the enforcement provision in chapter 47 states that where there is a permit 

violation, ANR “may bring suit in the superior court in any county where the discharge or 

noncompliance has occurred to enjoin the discharge and to obtain compliance.” 10 V.S.A. § 1274 

(emphasis added). The use of the word “may,” instead of “shall,” indicates a legislative intent to 

give ANR discretion to decide whether to bring an enforcement action in court, rather than 

making enforcement mandatory. See Town of Calais v. Cty. Rd. Comm’rs, 173 Vt. 620, 621 (2002). 

The Vermont Supreme Court has read a similar statute, which states that the Natural Resource 

Board (NRB) may initiate an enforcement action in Act 250 matters, as being discretionary and 

within the exclusive purview of the NRB. In re Treetop Dev. Co. Act 250 Dev., 2016 VT 20, ¶ 13 

and n.4, (Vt. Feb. 12, 2016), reargument denied (Mar. 25, 2016) (citing 10 V.S.A. § 6027(g)). These 

statutes can be contrasted with that which deals with municipal zoning violations, and which 

makes enforcement mandatory. 24 V.S.A. § 4452.5

Second, case law support’s ANR’s position that there is no avenue available to appeal an 

agency decision regarding whether or how to enforce an alleged Clean Water Act violation. 

The United States Supreme Court has held that “an agency’s decision not to prosecute or 

enforce, whether through civil or criminal process, is a decision generally committed to an 

agency’s absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). One reason for this, 

the Court explained, is that “an agency decision not to enforce often involves a complicated 

balancing of a number of factors which are peculiarly within its expertise,” including “assess[ing] 

whether a violation has occurred, . . . whether agency resources are best spent on this violation 

or another, whether the agency is likely to succeed if it acts, whether the particular enforcement 

action requested best fits the agency's overall policies, and . . . whether the agency has enough 

resources to undertake the action at all.” Id. Another reason for deference is that when an 

agency does not act, “it generally does not exercise its coercive power over an individual’s liberty 

or property rights, and thus does not infringe upon areas that courts often are called upon to 

protect.” Id. at 832 (emphasis in original). Finally, the Court noted that an agency’s discretion to

enforce or not is similar to a prosecutor’s discretion to indict or not, which is regarded “as the 

special province of the Executive Branch.” Id. 

In Vermont, too, prosecutors have broad discretion when deciding whether or not to 

prosecute, and “such a decision is entitled to great deference.” Office of State’s Attorney 

Windsor Cty. v. Office of Atty. Gen., 138 Vt. 10, 13–14 (1979). We have cited a similar principle 

in the land use and environmental context in concluding that “the legislature has created a 

 

5

 While there is no discretion regarding whether to bring a municipal zoning enforcement action, even then 

“the nature of the remedy sought is discretionary.” In re Letourneau, 168 Vt. 539, 549 (1998) (citing Richardson v. 

City of Rutland, 164 Vt. 422, 425 (1995)). 
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statutory scheme that appropriately reflects the constitutional separation of powers. For 

instance, decisions on how to enforce and prosecute land use laws and permits—a primarily 

executive function—do not receive de novo review.” In re Stormwater NPDES Petition, No. 14-

1-07 Vtec, slip op. at 11 (Vt. Super. Ct. Envtl. Div. Feb. 18, 2009) (Durkin, J.) (citing 10 V.S.A. § 

8003(a)). 

The Ninth Circuit drew on Heckler, among other decisions, in concluding that “the Clean 

Water Act leaves it to the discretion of the EPA Administrator whether to find violations and to 

take enforcement action, and . . . these discretionary decisions are not subject to judicial review.” 

Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001). 

Third, from a practical perspective, we generally approach matters in a way that will 

“ensure summary and expedited proceedings consistent with a full and fair determination in 

every matter coming before the court.” V.R.E.C.P. 1. Based on Mr. Monks’ letter, ANR is aware 

of the issue raised by Attorney Anderson (first, individually in his letter to ANR, second, on behalf 

of Vallee in the appeal to this Court), and ANR has a plan and process to resolve the issue. 

Litigating whether and how an enforcement action should be brought will slow down this plan 

and process, which could exacerbate the underlying issues that ANR and VTrans seek to resolve. 

Conclusion 

For the reasons set out above, we conclude that ANR’s decision in this case, which deals 

with whether and how to enforce an alleged violation of an MS4 permit, is a decision that is not 

reviewable in this Court. As such, we do not have subject matter jurisdiction over the appeal; 

the matter is therefore DISMISSED.

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A Judgment Order accompanies this Entry Order. This concludes the current 

proceedings before this Court. 

Electronically signed on May 02, 2017 at 11:23 AM pursuant to V.R.E.F. 7(d). 

_________________________________________ 

Thomas G. Walsh, Judge 

Superior Court, Environmental Division 

Notifications: 

Jon T. Anderson (ERN 1856) and Alexander J. LaRosa (ERN 5814), Attorneys for Appellants R.L. 

Vallee, Inc., Tim Vallee, Amy Norris, Rodolphe J. Vallee 

Hannah W. Smith (ERN 6759) and Kane H. Smart (ERN 4770), Attorneys for Interested Person 

Agency of Natural Resources 

Interested Person Town of Colchester 

Justin E. Kolber (ERN 4303) and John K. Dunleavy (ERN 1949), Attorneys for Interested Person 

SOV AOT 

Elena M. Mihaly (ERN 8101), Attorney for Conservation Law Foundation 

Mark G. Hall (ERN 2537), Attorney for Costco Wholesale Corp. 

 

6

 Vallee notes that “the ANR’s Motion to Dismiss makes a Federal Clean Water Act citizen’s suit ripe.” Vallee 

Response at 6. In any such citizen suit Vallee would assume the responsibility of enforcing any alleged violation; 

ANR would not be compelled to enforce. See Sierra Club, 268 F.3d at 904–05 (citations omitted); 33 U.S.C.A. § 

1365(a).