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 w ritten by the Agency of Natural Resources (ANR) regarding a Municipal Separate Stor m 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 lac k of subject matter jurisdiction, we accept “all uncontroverted factual allegations of t he complaint” 2 as true, and construe those allegations in the “light most favorable to the non moving 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 fo r 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 Nation al Pollution Discharge Elimination System (NPDES) permitting requirements to stormwater disch arges 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 t o 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 cons idering
motions to dismiss to “assume that all factual alle gations made by the non-moving party are true and t hat all contravening assertions made by the moving party ar e false,” without specifically being limited to a c omplaint. In re G & D, LLC Permit Application, No. 125-9-13 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Nov. 7, 2 013) (Walsh, J.) (citing Richards v. Town of Norwich, 169 Vt. 44, 49 (1999)); Buchwald Home Occ. Cond. Use Permit, No. 1 81-12-13 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Apr. 1, 2014) (Walsh, J.). 

## S TATE OF 

## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 122-10-16 Vtec2

NPDES permit coverage for their stormwater discharg es. In Vermont, ANR enforces the NPDES system. In re Stormwater NPDES Petition, 2006 VT 9 1, ¶ 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 d ischarges from eight municipalities and three additional entities, including VTrans. See I n 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, VT rans submitted a Stormwater Management Plan (SWMP) to ANR. In late 2013, ANR a uthorized 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 dischar ging phosphorus into Lake Champlain via Sunnyside Brook in Colchester.

Padraic Monks, Stormwater Program Manager for the D epartment of Environmental Conservation at ANR, sent a reply letter dated Sept ember 8, 2016 (the letter). The letter explains that VTrans’ SWMP had been approved in 2013, and th at 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 recen tly-approved Total Maximum Daily Load (TMDL) requirements. He further states that ANR pl ans to replace the MS4 permit with a reissued MS4 permit, and shift VTrans’ authorization to disc harge to a transportation separate stormwater sewer system (TS4) permit, which will re quire VTrans to complete a phosphorus control plan to ensure compliance with TMDLs. 3

R.L. Vallee, Inc., Tim Vallee, Amy Norris, and Rodo lphe J. Vallee, Trustee of the Rodolphe J. and Elizabeth W. Vallee Trust (collectively Vall ee), appealed the “rulings contained” in the September 8, 2016 letter insofar as “[t]he Letter a llows VTrans to keep discharging phosphorus into Lake Champlain.” Notice of Appeal at 1. Vall ee’s statement of questions asks whether VTrans is complying with the MS4 General Permit; an d 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 Sept ember 8, 2016 letter is related to a potential enforcement action brought pursuant to ti tle 10, chapter 201. 4 ANR offers that Vallee’s appeal to this Court is brought pursuant to title 1 0, chapter 220, which deals with consolidated environmental appeals. That chapter excludes enfor cement actions under title 10, chapter 201 from the list of statutory provisions under which a n appealable act or decision may arise. 10 V.S.A. § 8503(a).

Vallee responds that this appeal is brought pursuan t to title 10, chapter 47—not chapter 201. Chapter 47 contains a separate enforcement pr ovision 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 Divisi on 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.3

appeals confirms that the Environmental Division ha s 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 with out subject matter jurisdiction over this appeal. If this appeal is brought under title 10, Chapter 201, ANR’s letter is a decision relate d to an enforcement action expressly excluded from ma tters that may be appealed, and the Environmental Division has no jurisdiction over thi s 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 stat es that where there is a permit violation, ANR “ may

bring suit in the superior court in any county whe re 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,” inste ad of “shall,” indicates a legislative intent to give ANR discretion to decide whether to bring an e nforcement 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 statut e, which states that the Natural Resource Board (NRB) may initiate an enforcement action in A ct 250 matters, as being discretionary and within the exclusive purview of the NRB. In re Tre etop Dev. Co. Act 250 Dev., 2016 VT 20, ¶ 13 and n.4, (Vt. Feb. 12, 2016), reargument denied (Ma r. 25, 2016) (citing 10 V.S.A. § 6027(g)). These
statutes can be contrasted with that which deals wi th municipal zoning violations, and which makes enforcement mandatory. 24 V.S.A. § 4452. 5

Second, case law support’s ANR’s position that ther e 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 a gency’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 no t to enforce often involves a complicated balancing of a number of factors which are peculiar ly within its expertise,” including “assess[ing] whether a violation has occurred, . . . whether age ncy 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 pol icies, and . . . whether the agency has enough
resources to undertake the action at all.” Id. A nother reason for deference is that when an agency does not act, “it generally does not exercis e 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). Fina lly, the Court noted that an agency’s discretion to enforce or not is similar to a prosecutor’s discret ion 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 grea t deference.” Office of State’s Attorney Windsor Cty. v. Office of Atty. Gen., 138 Vt. 10, 1 3–14 (1979). We have cited a similar principle
in the land use and environmental context in conclu ding that “the legislature has created a

5 While there is no discretion regarding whether to bring a municipal zoning enforcement action, even t hen “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)).4

statutory scheme that appropriately reflects the co nstitutional 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. Di v. Feb. 18, 2009) (Durkin, J.) (citing 10 V.S.A. § 8003(a)).

The Ninth Circuit drew on Heckler, among other deci sions, in concluding that “the Clean
Water Act leaves it to the discretion of the EPA Ad ministrator whether to find violations and to take enforcement action, and . . . these discretion ary 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 a pproach matters in a way that will “ensure summary and expedited proceedings consisten t 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, in dividually 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 sh ould 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 violatio n 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. Thi s concludes the current

proceedings before this Court.

Electronically signed on May 02, 2017 at 11:23 AM p ursuant 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. V allee Hannah W. Smith (ERN 6759) and Kane H. Smart (ERN 4 770), Attorneys for Interested Person Agency of Natural Resources
Interested Person Town of Colchester Justin E. Kolber (ERN 4303) and John K. Dunleavy (E RN 1949), Attorneys for Interested Person
SOV AOT Elena M. Mihaly (ERN 8101), Attorney for Conservati on Law Foundation Mark G. Hall (ERN 2537), Attorney for Costco Wholes ale Corp.

6 Vallee notes that “the ANR’s Motion to Dismiss make s a Federal Clean Water Act citizen’s suit ripe.” Vallee Response at 6. In any such citizen suit Vallee woul d assume the responsibility of enforcing any allege d 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).