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VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION

Environmental Division Docket No. 20-ENV-00027

32 Cherry St, 2nd Floor, Suite 303,

Burlington, VT 05401

802-951-1740

www.vermontjudiciary.org

Agency of Natural Resources,

Plaintiff

v.

Vorsteveld Farm, LLP,

Respondent

DECISION ON MOTIONS

In the cross-motions for summary judgment before the Court in this enforcement action, 

the Agency of Natural Resources (ANR or the Agency) requests a judgment in favor of the 

settlement agreement it negotiated with Vorsteveld Farm, LLC (Respondent) while the 

Conservation Law Foundation (CLF), as a third-party intervenor, seeks to have it vacated. The 

settlement agreement is an assurance of discontinuance (AOD) that ANR entered into with 

Respondent pursuant to 10 V.S.A. § 8007 in resolution of Respondent’s violations of two Vermont 

statutes. CLF has intervened under 10 V.S.A. § 8020 to challenge the penalty amount in the 

proposed AOD as insufficient to carry out the purposes of the Administrative Environmental Law 

Enforcement statutes, 10 V.S.A Chapter 201.

The procedural posture of the motions for summary judgment is such that the parties 

agree to the material facts and have jointly filed a Stipulated Statement of Material Facts (SOMF). 

As there are no factual disputes, the briefs submitted by CLF and ANR request judgment on the 

matter of whether the AOD is sufficient to carry out the purposes of 10 V.S.A. Chapter 201. ANR 

and CLF each filed an initial motion for summary judgment (ANR referred to its motion as a brief 

in favor of judgment) as well as responsive briefing. 

ANR additionally filed a motion to strike CLF’s Reply to the Agency’s Reply, which CLF filed 

in response to ANR’s memorandum in opposition to CLF’s Motion for Summary Judgment. ANR 

argues that the Court did not authorize CLF to file a reply when it ordered in the March 23, 2021 
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Scheduling Order that “[r]esponses to any pretrial motions shall be filed in accordance with the 

V.R.C.P.” As the Scheduling Order authorizes responses consistent with the V.R.C.P, and V.R.C.P. 

56(c)(5) explicitly allows the moving party to “file a reply to a memorandum in opposition within 

14 days after service of the memorandum,” the Court finds no issue with CLF’s Reply. V.R.C.P. 

56(c)(5). ANR’s motion to strike is DENIED. 

CLF is represented by Attorney Elana M. Mihaly and Attorney Heather A. Govern, pro hac 

vice. ANR is represented by Attorney Kane Smart. Respondent is represented by Attorney John 

M. Mazzuchi, and by Attorney Gary H. Baise, pro hac vice. 

Background

Respondent owns and operates a Large Farm Operation in Panton, Vermont, consisting 

of three facilities on multiple properties in the same general vicinity, and about 1,500 acres of 

agricultural land bounded to the east by the Dead Creek. ANR and Respondent entered the AOD 

in late September of 2020 in resolution of the violation of 10 V.S.A. § 1259(a) for the unpermitted 

discharge of wastes from one of Respondent’s facilities to a tributary of the Dead Creek, and two 

violations of 10 V.S.A § 913(a) and Vermont Wetlands Rules § 9.1 for unpermitted clearing 

vegetation, dredging, and placing fill in Class II wetlands and buffer zones. ANR discovered one 

of the wetlands violations in an area near Panton Road in May 2016 (Panton Road Wetland) and 

the other in June 2017 near Pease Road (Pease Road Wetland). ANR first observed the discharge 

violation in March 2020. 

ANR reached this settlement with Respondent pursuant to 10 V.S.A § 8007, which allows 

ANR to accept an AOD from a respondent as an alternative to other methods of enforcement 

such as an Administrative Order (AO). 10 V.S.A. § 80079(a). Under the AOD, Respondent agrees 

to the facts proving the violations and agrees to perform the actions described in its terms to 

remediate the impact of the violations. Along with remediation, the AOD also requires 

Respondent to pay a penalty of $21,750. 

ANR filed the AOD with the Court on November 19, 2020 and CLF subsequently moved to 

intervene under 10 V.S.A. § 8020(c). The Court granted the motion to intervene on January 4, 

2021 in an entry order following a hearing that day in which the attorneys discussed the motion. 
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The scope of CLF’s intervention is limited by 10 V.S.A. § 8020(h) to the question of whether the 

AOD is insufficient to carry out the purposes of the Administrative Environmental Law 

Enforcement statutes in Chapter 201.

Stipulated Statement of Material Facts

CLF, ANR, and Respondent submitted the following facts in a Stipulated Statement of 

Material Facts on April 30, 2021 pursuant to the Court’s March 23, 2021 Scheduling Order:

1) On April 27, 2020, the Agency sent Respondent a letter stating that it had 

“information that Vorsteveld Farm, LLP, has violated two Vermont statutes in the 

operation of the Vorsteveld Farm in Panton” and “concluded that enforcement 

was warranted.” [Exh. 1, ANR Enforcement Letter to Vorstevelds (Apr. 27, 2020)] 

2) In late September 2020, the Agency and Respondent entered into an Assurance of 

Discontinuance (AOD) in order “to resolve all outstanding disputes” concerning 

the alleged violations. The AOD was signed by Respondent on September 21, 

2020, and by the Agency on September 29, 2020. The AOD was filed with this 

Court on November 19, 2020. [Exh. 2, Assurance of Discontinuance] 

3) The Parties hereby incorporate Paragraphs 1 – 17 of the Statement of Facts and 

Description of Violation as well as Paragraphs B – L of the Agreement Section in 

the AOD. [Exh. 2] 

4) The AOD requires that Respondent “pay a total penalty of $21,750” for the alleged 

violations. [Exh. 2 at ¶ A]. 

5) In response to written discovery propounded by CLF, Zapata Courage, District 

Wetlands Ecologist, Wetlands Program, and Christopher Gianfagna, Manager, 

Concentrated Animal Feeding Operation Program, both stated “We determined 

the $21,750 penalty in the settlement agreement by considering the statutory 

criteria found in 10 V.S.A. § 8010 and the Environmental Administrative Penalty 

Rules, using our expertise in our respective scientific fields and our experience in 

our respective Programs within the Agency.... Throughout the process, we also 

considered privileged legal advice concerning historical Agency practice, general 

principles of fairness and justice, and litigation risks and settlement benefits as 

they relate to the Environmental Division’s de novo review of an AO to be pursued 

in lieu of an AOD, including the quality of evidence and existing judicial precedent. 

If a respondent appeals an AO, the Court will independently determine a penalty 

based on the evidence presented at trial. The risks of pursuing an AO that results 

in an unfavorable decision from the Court and the establishment of adverse 

judicial precedent are weighed against the benefits of settlement and entering an 
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AOD, including certainty, finality, and prompt environmental remediation.” [Exh. 

3, Response to Q.APPELLANTS:ANR.1]

6) For purposes of settlement, a $6,750 penalty was assessed for the discharge to 

the tributary of the Dead Creek, and a $15,000 penalty was assessed for the 

activities in the Panton Road and Pease Road Wetlands. [See Exh. 16, Response to 

Q.APPELLANTS:ANR.8]

7) In response to written discovery propounded by CLF, Zapata Courage, District 

Wetlands Ecologist, Wetlands Program, states “I determined a single penalty for 

the violations of 10 V.S.A. § 913(a) and Vermont Wetland Rules § 9.1 for the 

removal of vegetation and placement of fill within portions of the Panton Road 

Wetland and its 50-foot wetland buffer area in May 2016, and the vegetation 

removal, dredging, and filling within portions of the Pease Road Wetland and its 

50-foot wetland buffer area in June 2017. A single monetary penalty was 

determined based on the facts and circumstances in this enforcement matter, 

including the facts that the same landowner was involved in both actions, that 

similar compliance directives were required for both areas, that the affected 

wetlands were in the same general vicinity and part of larger wetland complexes, 

that neither violation resulted in a threat to or actual substantial harm to the 

environment or public health, and that the Agency notified the Respondent of 

both violations through the same notice of alleged violation with the same 

compliance directives. My determination here is consistent with the approach the 

Wetlands Program has taken in prior enforcement matters.” [Exh. 4, Response to 

Q.APPELLANTS:ANR.2] 

8) In response to written discovery propounded by CLF, Zapata Courage, District

Wetlands Ecologist, Wetlands Program, states “Grouping violations together 

when calculating penalties is done on a case-by-case basis because it depends on 

the facts and circumstances surrounding the particular enforcement matter. 

Under 10 V.S.A. § 8010(c)(1), the decision to assess a separate penalty for each 

violation is discretionary. It states that a penalty “may be assessed for each 

determination of a separate violation.” [Exh. 5, Response to 

Q.APPELLANTS:ANR.15]

9) In response to written discovery propounded by CLF, Zapata Courage, District 

Wetlands Ecologist, Wetlands Program, states: “For purposes of settlement, I 

classified Respondent’s removal of vegetation, placement of fill, and dredging 

within portions of the Panton Road Wetland and Pease Road Wetland and their 

50-foot wetland buffer areas as Class II violations because they involve activities 

initiated before the issuance of all necessary environmental permits, and they 

neither caused substantial harm nor presented a threat of substantial harm to the 

environment or public health. The determination was based on the fact that 

Respondent’s activities in the affected wetlands trigger jurisdiction and require a 
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permit. Under Vermont Wetland Rules § 9.1, any activity that is not an exempt or 

allowed use occurring within a Class II wetland or its buffer requires a wetland 

permit. The determination was also based on the facts and circumstances of this 

enforcement matter relating to the potential harm to the environment and public 

health, including the wetland characteristics like soil and vegetation type; the size, 

extent, and degree of the disturbance within the wetlands; the relationship 

between the affected wetlands and the larger wetlands complex; the effect of the 

disturbance on the functions and values of the wetlands and the larger wetlands 

complex, the historical uses of the wetlands and the surrounding areas; and the 

likelihood of successful wetland restoration. My determination here is consistent 

with the approach the Wetlands Program has taken in prior enforcement 

matters.” [Exh. 6, Response to Q.APPELLANTS:ANR.4]

10) In response to written discovery propounded by CLF, Christopher Gianfagna, 

Manager, Concentrated Animal Feeding Operation Program, states: “For purposes 

of settlement, I classified the discharge of wastes from the Main Farm facility 

through the roadside channel to the tributary of the Dead Creek as a Class II 

violation because the violation is more than a minor violation of the statute. Early 

in the evaluation of the facts and circumstances surrounding the discharge, I 

initially classified the violation as a Class I violation based on the threat of 

substantial harm to the environment; however, after further evaluation of the 

evidence and more familiarity with the facility and discharge—and in order to be 

consistent with the classification in recent AODs of Section 1259(a) violations 

involving similar facts and circumstances, including similar waste streams—I 

decided it was more appropriate to consider the violation as a Class II violation.

The determination was based on the facts and circumstances of this enforcement 

matter, including the constituents of the discharge and their relative contribution; 

that is, the characteristics of the discharge, like strength of the waste material, 

flow rate, frequency, and timing; as well as the degree of impact on receiving 

waters, including impacts to aquatic life and habitat.” [Exh. 6, Response to 

Q.APPELLANTS:ANR.4] 

11) In response to written discovery propounded by CLF, Zapata Courage, District 

Wetlands Ecologist in the Wetlands Program, states “[f]or purposes of settlement, 

I assigned a score of 8 to the violations of 10 V.S.A. § 913(a) and Vermont Wetland 

Rules § 9.1, broken down as follows: 

(a) Public Health: 1 – The violations had a minor actual impact on public 

health, safety, and welfare because of the aesthetic impact of tree removal 

at the Pease Road wetland. The violations had a minor potential impact on 

public health, safety, and welfare because of the risk of reduced flood 

storage capacity at the Panton Road wetland. 

(b) Environment: 3 – The violations had a major actual impact on the 

environment because the vegetation removal, fill, and excavation resulted 

in diminished function of more than 6 acres of wetlands at Panton Road. 
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(c) Knowledge: 1 – Respondent had reason to know about the violated legal 

requirement because 10 V.S.A. § 913(a) and the Vermont Wetland Rules § 

9.1 are freely available to the public. There is clear evidence Respondent 

knew the facts of the violation existed at the Pease Road Wetland because 

prior to the activities, Respondent possessed a map from NRC showing the 

presence of the Pease Road Wetland. The lower score pertains to 

knowledge of the legal requirement (1 vs 3).

(d) Compliance History: 0 – Respondent had no prior violations because no 

final judicial orders concerning the Agency rules, regulations, or statutes 

were issued against Respondent in the last 7 years. 

(e) Duration: 3 – The violations were of long duration because they existed 

more than 1 year. 

My determinations here are consistent with the approach the Wetlands Program 

has taken in prior enforcement matters.” [Exh. 7, Response to 

Q.APPELLANTS:ANR.5] 

12) In response to written discovery propounded by CLF, Zapata Courage, District 

Wetlands Ecologist in the Wetlands Program, states “After considering Section 20-

302(b) and (c) [of the Administrative Penalty Rules], I determined a base penalty 

of $12,000 for the violations of 10 V.S.A. § 913(a) and Vermont Wetland Rules § 

9.1. I adjusted the base penalty to $30,000 under Section 20-302(c)(2)(A) [of the 

Administrative Penalty Rules] because the degree of actual or potential 

environment impact resulted in a score of 3.” [Exh. 8, Response to 

Q.APPELLANTS:ANR.6] 

13) In response to written discovery propounded by CLF, Zapata Courage, District 

Wetlands Ecologist in the Wetlands Program, states that “For purposes of 

settlement, I did not consider the violations of 10 V.S.A. § 913(a) and Vermont 

Wetland Rules § 9.1 to be a “continuing” violation. Considering a violation 

“continuing” is done on a case-by-case basis because it depends on the facts and 

circumstances surrounding the particular enforcement matter. Under 10 V.S.A. § 

8010(c)(1) and Section 20-105 of the Administrative Penalty Rules, the decision to 

consider a violation “continuing” is discretionary. I “may consider any violation 

[that meets the criteria] as a continuing violation.” In exercising this discretion, I 

decided not to classify the violation as “continuing” after considering many 

factors, including that the penalty in the AOD was sufficient to carry out the 

purposes of 10 V.S.A. § 8001 without “additional penalties for each day” of the 

violations. I also considered whether Respondent’s actions had discrete 

endpoints, if there was a measurable or discernable additional harm on each 

consecutive day, and whether the Agency had interactions with the Respondent 

during the period in question. Other considerations involved whether the penalty 

attributable to a continuing violation would exceed the Agency’s statutory cap or 

be disproportionate to the nature of the violation. My approach is consistent with 
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the approach the Wetlands Program has taken in prior enforcement matters 

involving similar circumstances.” [Exh. 9, Response to Q.APPELLANTS:ANR.3] 

14) In response to written discovery propounded by CLF, Christopher Gianfagna, 

Manager in the Concentrated Animal Feeding Operation Program, states that 

“[f]or purposes of settlement, I assessed a score of 5 to the violation of 10 V.S.A. 

§ 1259(a), broken down as follows: 

(a) Public Health: 0 – The violation had a minor potential impact on public 

health, safety, and welfare because of the relatively low risk of contact 

recreation and drinking water contamination. 

(b) Environment: 1 – The violation had a moderate potential impact on the 

environment because of the potential impact of specific pollutants 

entering state waters. 

(c) Knowledge: 1 – The Respondent had reason to know about the violated 

legal requirement because 10 V.S.A. § 1259(a) is freely available to the 

public and the respondent is engaged in a regulated activity. Respondent 

should have reasonably known the facts of the violation on May 8, 2019, 

because Respondent works in the area where the source and pathway of 

pollutant-laden runoff is observable. 

(d) Compliance History: 0 – Respondent had no prior violations because no 

final judicial orders concerning Agency rules, regulations, or statutes were 

issued against Respondent in the last 7 years. 

(e) Duration: 3 – The violation was of a long duration because it existed on 

May 8, 2019, and I observed evidence of similar issues in March of 2020. 

My determinations here are consistent with the approach the CAFO Program has 

taken in prior enforcement matters.” [Exh. 7, Response to Q.APPELLANTS:ANR.5] 

15) In response to written discovery propounded by CLF, Christopher Gianfagna, 

Manager in the Concentrated Animal Feeding Operation Program, states “After 

considering Section 20-302(b) and (c) [of the Administrative Penalty Rules], I 

determined a base penalty of $9,000 for the violation of 10 V.S.A. § 1259(a).” [Exh. 

8, Response to Q.APPELLANTS:ANR.6] 

16) The Agency of Agriculture, Food & Markets sent a Corrective Action Warning 

Letter (CAL) to Respondent on April 9, 2018, for failure to properly operate and 

maintain two clean water diversion ditches located to the south and north of the 

Main Back and Far Back manure pits. The CAL provides notice that the Vorstevelds 

violated their Large Farm Operation (LFO) Permit LFO#2014-02-A2, the LFO Rule, 

and the Required Agricultural Practices Regulations (RAPs). The CAL does not 

mention 10 V.S.A. § 1259(a) or the Agency of Natural Resources. [Exh. 10, AAFM, 

Corrective Action Warning Letter (April 9, 2018)] 
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17) The Agency of Agriculture, Food & Markets sent a Corrective Action Warning 

Letter (CAL) to Respondent on November 15, 2019, for failure to properly operate 

and maintain the clean water diversion ditches on the Main Farm on May 8, 2019. 

The CAL provides notice that the Vorstevelds violated their Large Farm Operation 

(LFO) Permit LFO#2014-02-A2 and the Required Agricultural Practices (RAP) Rule. 

The CAL does not mention 10 V.S.A. § 1259(a). [Exh. 11, AAFM, Corrective Action 

Warning Letter (November 15, 2019)] 

18) In response to written discovery propounded by CLF, Christopher Gianfagna, 

Manager in the Concentrated Animal Feeding Operation Program, states that “For 

purposes of settlement, I did not consider the violation of 10 V.S.A. § 1259(a) to 

be a “continuing” violation. Considering a violation “continuing” is done on a caseby-case basis because it depends on the facts and circumstances surrounding the 

particular enforcement matter. Under 10 V.S.A. § 8010(c)(1) and Section 20-105 

of the Administrative Penalty Rules, the decision to consider a violation 

“continuing” is discretionary. I “may consider any violation [that meets the 

criteria] as a continuing violation.” In exercising this discretion, I decided not to 

classify the violation as “continuing” after considering many factors, including that 

the penalty in the AOD was sufficient to carry out the purposes of 10 V.S.A. § 8001 

without “additional penalties for each day” of the violations. In addition, the 

precipitation-driven discharge from the Main Farm facility through the roadside 

channel to the tributary of the Dead Creek did not exhibit the characteristics of a 

continuing violation. My approach is consistent with the approach the CAFO 

Program has taken in prior enforcement matters.” [Exh. 9, Response to 

Q.APPELLANTS:ANR.3] 

19) When the Agency completed the Administrative Penalty Form on March 24, 2020, 

the Agency identified a potential economic benefit associated with the violations 

of 10 V.S.A. § 913(a) and Vermont Wetland Rules § 9.1 that included “conversion 

to cropland increases yield + supply for sale: sale of timber removed.” The Agency 

did not attribute a monetary amount to this activity, but “reserved” this for a later 

determination. [Administrative Penalty Calculation for the Wetlands Violation, 

Exh. 12] 

20) In response to written discovery propounded by CLF, Zapata Courage, District 

Wetlands Ecologist in the Wetlands Program, states “For purposes of settlement, 

I did not increase the $30,000 adjusted base penalty for the violations of 10 V.S.A. 

§ 913(a) and Vermont Wetland Rules § 9.1 to reflect an economic benefit realized 

by Respondent because Respondent will incur costs restoring the areas and 

remediating the impact—costs that are likely greater than the cost of obtaining a 

permit or avoiding impacts in the first place—such as the labor costs associated 

with the additional time needed for a consultant to develop the site and 

restoration plans, labor costs to remove and dispose of fill, cost of replanting 

vegetation, and costs of ongoing monitoring. The economic benefit for 
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Respondent’s temporary use of the disturbed areas is difficult to accurately 

calculate, and likely marginal due to the insignificant increase in production area. 

Any profit from a potential sale of timber is similarly difficult to accurately 

estimate and likely negligible. The significant costs to bring the site into 

compliance—including removing the fill, replanting vegetation, and monitoring 

for three years—will more than likely offset any avoided costs or financial gains.

Nor did I increase the $30,000 adjusted base penalty to reflect the state’s costs of 

enforcement related to the violation because the costs of enforcement do not 

materially accrue unless the case proceeds to litigation, and the costs of my time 

investigating the violation and participating in negotiations are relatively modest 

and overshadowed by the benefits of prompt settlement. Not including costs of 

enforcement in an AOD is consistent with the approach the Wetlands Program has 

taken in prior enforcement matters” [Exh. 13, Response to Q.APPELLANTS:ANR.7] 

21) In response to written discovery propounded by CLF, Respondent stated that 

“Respondent’s activities near Panton Road resulted in Respondent gaining the use 

of two to three additional acres of crop land from 2016 to present, and 

Respondent has made no use of the Pease Road Wetland.” Respondent also stated 

that “its costs to remediate the alleged wetlands violations under Paragraph C of 

the AOD will dramatically outweigh any minor economic benefit Respondent may 

have derived from the alleged violations.” [Exh. 14, Vorsteveld Farm, LLP’s 

Response #6 to Conservation Law Foundation’s First Set of Requests for 

Production] 

22) In response to written discovery propounded by CLF, Zapata Courage, District 

Wetlands Ecologist in the Wetlands Program, states, “For purposes of settlement, 

I did not increase for deterrent effect the $30,000 adjusted base penalty for the 

violations of 10 V.S.A. § 913(a) and Vermont Wetland Rules § 9.1 because—in light 

of the cost of compliance directives in the AOD, the lack of prior Agency 

enforcement actions against Respondent, and the effect of the enforcement 

action on Respondent’s behavior—I did not think that increasing the penalty was 

reasonably necessary to deter Respondent or the regulated community from 

future violations of 10 V.S.A. § 913(a) and Vermont Wetland Rules § 9.1.” [Exh. 15, 

Response to Q.APPELLANTS:ANR.9] 

23) In response to written discovery propounded by CLF, Zapata Courage, District 

Wetlands Ecologist in the Wetlands Program, states: “For purposes of settlement, 

I reduced the $30,000 adjusted base penalty for the violations of 10 V.S.A. § 913(a) 

and Vermont Wetland Rules § 9.1 in consideration of the Agency’s delay in 

initiating enforcement and Respondent’s willingness to enter into a settlement 

agreement. I reduced the $30,000 adjusted base penalty by a total of 50%. It is 

standard for the Wetlands Program to consider settlement a mitigating 

circumstance that warrants a 25% reduction in based [sic] penalty. The further 

reduction was based on a reasonable valuation of delayed enforcement as a 
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mitigating circumstance. I think it is reasonable to anticipate that the Court could 

find undue delay based on the evidence presented at trial, and that the Court 

could reduce the penalty by at least 25%. Although Respondent did take relatively 

prompt action in response to formal Agency enforcement—including hiring 

consultants to initiate the compliance effort on the schedule in the AOD—

Respondent’s efforts did not warrant a further reduction in the penalty.” [Exh. 16, 

Response to Q.APPELLANTS:ANR.8] 

24) During the time period from the Agency’s discovery of the Pease Road Wetland 

violation in June 2017 and Panton Road Wetland violation in May 2016 and the 

initiation of a formal enforcement action in April 2020, the Agency conducted 

investigations into both violations and communicated with the Agency of 

Agriculture, Food & Markets in 2017, sent a Notice of Alleged Violation in July 

2017, gave the Respondent additional time to complete restoration so that 

Respondent could harvest crops in fall 2017, and sent registered mail in spring of 

2018 that was later returned. No further attempt at delivery was made and 

enforcement was not pursued. Discussions on next steps went to Agency 

leadership. [Exh. 17, Email from Laura Lapierre to Kim Greenwood, December 3, 

2019] 

25) On December 30, 2019, Zapata Courage emailed Agency leadership before 

initiating formal enforcement, identifying some options for moving forward and 

stating that “outside perception would be that DEC did not consider this a priority” 

because “DEC was silent for 1 year when [the] violation first came to light, then 

went silent again for another year.” [Exh. 18, Email from Zapata Courage to Emily 

Boedecker and Kim Greenwood (Dec. 30, 2019)] 

26) In response to written discovery propounded by CLF, Christopher Gianfagna, 

Manager in the Concentrated Animal Feeding Operation Program, states: “For 

purposes of settlement, I did not increase the $9,000 base penalty for the violation 

of 10 V.S.A. § 1259(a) to reflect an economic benefit realized by Respondent 

because Respondent’s avoided costs of capturing and managing the waste are 

difficult to accurately estimate, and Respondent actually incurred costs installing 

structural improvements to eliminate the discharge. There was insufficient 

evidence to make a reasonable approximation of any gain, profit, or

delayed/avoided cost, much of which would likely be offset by the costs of 

returning to compliance. Nor did I increase the $9,000 base penalty to reflect the 

state’s costs of enforcement related to the violation because the costs of 

enforcement do not materially accrue unless the case proceeds to litigation, and 

the costs of my time investigating the violation and participating in negotiations 

are relatively modest and overshadowed by the benefits of prompt settlement. 

Not including costs of enforcement in an AOD is consistent with the approach the 

CAFO Program has taken in prior enforcement matters.” [Exh. 13, Response to 

Q.APPELLANTS:ANR.7] 
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27) In response to written discovery propounded by CLF, Respondent stated that “the 

alleged unpermitted discharge did not result in an economic benefit to 

Respondent. Respondent was not required to change its typical operations at its 

Jersey Street facility in order to cure the problems identified in the AOD, nor was 

Respondent saving any significant sum of money by not addressing the conditions 

which allegedly led to an unpermitted discharge sooner.” [Exh. 14, Vorsteveld 

Farm, LLP’s Response #6 to Conservation Law Foundation’s First Set of Requests 

for Production] 

28) In response to written discovery propounded by CLF, Christopher Gianfagna, 

Manager in the Concentrated Animal Feeding Operation Program, states: “For 

purposes of settlement, I did not increase for deterrent effect the $9,000 base 

penalty for the violation of 10 V.S.A. § 1259(a) because—in light of the compliance 

directives in the AOD, the lack of prior Agency enforcement actions against 

Respondent, and Respondent’s promptness in taking remedial action, and candor 

and cooperation in resolving the issues—I did not think that increasing the penalty 

was reasonably necessary to deter Respondent or the regulated community from 

future violations of 10 V.S.A. § 1259(a).” [Exh. 15, Response to 

Q.APPELLANTS:ANR.9] 

29) In response to written discovery propounded by CLF, Christopher Gianfagna, 

Manager in the Concentrated Animal Feeding Operation Program, states: “For 

purposes of settlement, I reduced the $9,000 base penalty for the violation of 10 

V.S.A. § 1259(a) in consideration of Respondent’s willingness to enter into a 

settlement agreement. I reduced the base penalty by 25%. It is standard for the 

CAFO Program to consider settlement a mitigating circumstance that warrants a 

25% reduction in based [sic] penalty. Although Respondent did take relatively 

prompt action to address the discharge after the Agency gave notice of the 

violation, Respondent’s response did not warrant a further reduction in the 

penalty.” [Exh. 16, Response to Q.APPELLANTS:ANR.8] 

30) On August 13, 2020, the Agency received a complaint from a member of the public 

about the installation of tile drains and tile drain outfalls in fields near Dead Creek 

and on the north side of Panton Road. [Exh. 19, Email from Ethan Swift to Zapata 

Courage (Aug. 14, 2020)] 

31) After completing an investigation in response to the August 13, 2020 complaint, 

on January 14, 2021, the Agency sent a Notice of Alleged Violation (NOAV) to the 

Respondent to put Respondent on notice that the Agency “believes that 

[Respondent is] in violation of the Vermont Wetland Rules within the fields west 

of and adjacent to Dead Creek, north side of Panton Road” for “[e]xcavating 

and/or filling of a Class II wetland or buffer for the tile drain outfalls without a 

wetland permit in violation of the VWR.” [Exh. 20, Notice of Alleged Violation, 

Panton Road, Panton – Wetland Project 2020-555] 
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32) On October 5, 2020, an employee of the Vermont Department of Fish & Wildlife 

notified Zapata Courage that the Respondent “tiled their field and drained it into 

Dead Creek. As part of that process they destroyed one of our fences and dug onto 

our property. Also, they dug trenches in the wetland and cut a lot of trees in the 

buffer.” [Exh. 21, Email from Amy Alfieri to Zapata Courage (Oct. 5, 2020)] 

33) On November 5, 2020, Catherine Gjessing, General Counsel for the Vermont 

Department of Fish and Wildlife, sent a letter to the Vorstevelds stating that “On 

August 24th Department staff observed that tile drains were being installed on 

fields on your property, abutting Fish and Wildlife land in the town of Panton. Two 

tile pipe outlets appear to be on Department land and a third is obviously on 

Department land as it was installed several feet beyond the boundary fence.” The 

letter made no mention of any wetlands. [Exh. 22, Letter from Catherine Gjessing 

to Respondent (Nov. 5, 2020)] 

34) On January 11, 2021, Catherine Gjessing, General Counsel for the Vermont 

Department of Fish and Wildlife, wrote an email to Gerard and Hans Vorsteveld 

regarding the placement of one of the tile drains, stating that “It has come to my 

attention that there are a number of wetlands in the area and that the 

encroachment may also be a violation of the wetland rules.” The email directed 

the Vorstevelds to coordinate with Zapata Courage to ensure that the removal of 

the tile drain was completed in accordance with the Vermont Wetland Rules. [Exh. 

23, Email from Catherine Gjessing to Respondent (Jan. 11, 2021)] 

35) After completing an investigation in response to the October 5, 2020 complaint 

associated with the Department of Fish and Wildlife’ August 24, 2020

observations, on January 14, 2021, the Agency sent a second NOAV to the 

Respondent to put Respondent on notice that the Agency “believes that 

[Respondent is] in violation of the Vermont Wetland Rules within the fields west 

of and adjacent to Dead Creek, south side of South Road and the dam connected 

to West Road” for “[e]xcavating and/or filling of a Class II wetland or buffer for the 

tile drain outfalls without a wetland permit in violation of the VWR.” [Exh. 24,

Notice of Alleged Violation, Panton Road, Panton – Wetland Project 2020-666] 

36) Other than the Environmental Administrative Penalty Rules, the Agency does not 

have a written policy, procedure, or guidance on the calculation of environmental 

administrative penalties. [Exh. 25, Responses to RTP.APPELLANTS:ANR.4 and 5] 

37) The Administrative Penalty Form does not provide instructions or guidance on 

how to determine whether a violation is continuous. Under Section 20-105 of the 

Environmental Administrative Penalty Rules, the Agency “may consider any 

violation [that meets the criteria] as a continuing violation subject to additional 

penalties for each day the violation continues.” [Exh. 26, Administrative Penalty 

Form and Exh. 27, Administrative Penalty Rules] 
13

38) The Administrative Penalty Form does not provide instructions or guidance on 

how to determine whether a violation caused a minor, moderate, or major 

potential or actual impact on the environment or public health, safety, and 

welfare. [Exh. 26]. 

39) The Administrative Penalty Form does not provide instructions or guidance on 

whether or how to adjust a penalty due to economic benefit or the cost of 

enforcement. Under Section 20-302(d) of the Environmental Administrative 

Penalty Rules, the “penalty amount may be increased” to reflect the economic 

benefit realized by a respondent or by the costs of enforcement related to the 

violation. [Exh. 26 and Exh. 27] 

40) The Administrative Penalty Form does not provide instructions or guidance on 

whether or how to adjust a penalty due to mitigating circumstances. Under 

Section 20-302(e) of the Environmental Administrative Penalty Rules, the Agency 

“may reduce the penalty amount” to account for the presence of mitigating 

circumstances. It further states that the Agency “may consider” a number of 

factors in making this determination, including “relevant factors as determined by 

the Secretary.” [Exh. 26 and Exh. 27] 

41) The Administrative Penalty Form does not provide instructions or guidance on 

whether or how to adjust a penalty to deter a respondent and the regulated 

community from committing this violation, or similar violations, in the future. 

Under Section 20-302(e) of the Environmental Administrative Penalty Rules, the 

Agency “may increase the penalty” if “a larger penalty is reasonably necessary” 

for deterrence. [Exh. 26 and Exh. 27] 

42) The Administrative Penalty Form does not provide instructions or guidance on 

whether or how to adjust a penalty to account for a delay by the Agency in seeking 

enforcement. “Unreasonable delay by the Secretary in seeking enforcement” is 

expressly identified in 10 V.S.A. § 8010(b) as a factor that the Agency must 

consider in determining the amount of the penalty. Under Section 20-302(e) of 

the Environmental Administrative Penalty Rules, the Agency “may reduce the 

penalty amount” in consideration of “unreasonable delay by the Secretary in 

seeking enforcement.” [Exh. 26 and Exh. 27 ] 

Standard of Review and Applicable Law

To prevail on a motion for summary judgment, the moving party must demonstrate “that 

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” V.R.C.P. 56(a). The nonmoving party “receives the benefit of all reasonable 

doubts and inferences,” but must respond with more than unsupported allegations in order to 

show that material facts are in dispute. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 
14

356. For the purposes of the motion, the Court “will accept as true the allegations made in 

opposition to . . . summary judgment, so long as they are supported by affidavits or other 

evidentiary material.” Id.; Pettersen v. Monahan Safar Ducham, PLLC, 2021 VT 16, ¶ 9.

Review of an assurance of discontinuance (AOD) is narrower in scope than review of an 

administrative order (AO). In response to a respondent’s challenge to an AO for example, the 

Court will “determine anew the amount of a penalty by applying the criteria set forth in 

subsections 8010(b) and (c).” 10 V.S.A. § 8012(b)(4). In the event of a challenge to an AOD, 

“[u]nlike the de novo determination the court must make when performing judicial review of an 

administrative order,” the standard is whether the terms are “insufficient to carry out the 

purposes” of the administrative environmental law enforcement statutes in Chapter 201. 

Secretary, Vermont Agency of Natural Resources v. Newbury Waste Management Inc., et al., No. 

E93-042, slip op. at 2 (Vt. Envtl. Ct. July 22, 1994) (Wright, J.), citing 10 V.S.A. § 8007(c); 10 V.S.A. 

§ 8020(h). This difference in standards reinforces the “strong public policy favoring the 

settlement of disputes without litigation,” that courts “should not seek to retain a dispute . . . if 

the parties to that dispute are able to resolve it.” Id. (citing Dutch Hill Inn, Inc. v. Patten, 131 Vt. 

187, 192 (1973)) (explaining that “this policy does not limit a court in satisfying itself that any 

such settlement is just and that its terms are not unconscionable”). When ANR negotiates an 

AOD, instead of assessing the penalty anew, the Court reviews the terms reached by the parties 

and vacates an AOD only upon finding it “insufficient.”

CLF has a high burden in its opposition to the AOD as an intervenor under 10 V.S.A. § 

8020(h). The statute allows third-party intervention in an environmental enforcement action 

only for the “sole purpose” of proving that the terms of the AOD or other proposed action are

“insufficient to carry out the purposes” of Chapter 201. 10 V.S.A. § 8020(h). The Court will only 

vacate the AOD if CLF establishes by a preponderance of the evidence that it is insufficient in this 

manner. Id.

The purposes of the environmental enforcement statutes in Chapter 201 are to:

(1) enhance the protection of environmental and human health afforded by existing laws;
15

(2) prevent the unfair economic advantage obtained by persons who operate in violation 

of environmental laws;

(3) provide for more even-handed enforcement of environmental laws;

(4) foster greater compliance with environmental laws;

(5) deter repeated violation of environmental laws; and

(6) establish a fair and consistent system for assessing administrative penalties.

10 V.S.A. § 8001.

In furtherance of these purposes, ANR must consider the following factors when assessing 

a penalty: 

(1) the degree of actual or potential impact on public health, safety, welfare, and the 

environment resulting from the violation;

(2) the presence of mitigating circumstances, including unreasonable delay by the 

Secretary in seeking enforcement;

(3) whether the respondent knew or had reason to know the violation existed;

(4) the respondent's record of compliance;

(5) [Repealed]

(6) the deterrent effect of the penalty;

(7) the State's actual costs of enforcement; and

(8) the length of time the violation has existed.

10 V.S.A. § 8010(b)(1) – (8). See also, 10 V.S.A. § 8010(c)(1) – (2) (restricting the the maximum 

penalty for each violation to $42,500 plus up to $17,000 for each day a violation continues, and 

allowing the state to “recapture economic benefit” up to a combined total maximum of 

$170,000). 

ANR’s Administrative Penalty Form, attached as Exhibit 26 to CLF’s motion, provides a 

procedure for assessing penalties based on these penalty factors. Natural Resources Board v. 

The Stratton Corp., No. 106-7-14 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div. Nov. 17, 2015) 

(describing form as an “effort to standardize penalties and ensure a fair process”). ANR’s penalty 

assessments must also conform to the Environmental Administrative Penalty Rules (Penalty 

Rules), attached as Exhibit 27 to CLF’s motion. Secretary, Vermont Agency of Natural Resources 
16

v. Supeno, No. 98-8-15 VTEC, 2017 WL 876153, at *6 (Vt.Super. Feb. 14, 2017) (“ANR is bound 

both by 10 V.S.A. § 8010 and their own rules, called the Environmental Administrative Penalty 

Rules”). 

CLF’s task of establishing that the AOD is insufficient to meet these purposes will require 

overcoming the discretion ANR has in assessing penalties. Beyond requiring ANR to consider the 

factors listed in § 8010(b) and stay below the maximums set in § 8010(c), the statutes in Chapter 

201 give ANR significant room to determine an appropriate remedy for a violation. See e.g., 10 

V.S.A. § 8003(a) (“Secretary may take action under this chapter”) (emphasis added); 10 V.S.A. § 

8007(b)(4) (specifying that an AOD “may” include monetary penalties); 10 V.S.A § 8010(c)(1) –

(2) (ANR “may” assess a penalty for each day of a continuing violation and “may” recapture 

economic benefit). The Administrative Penalty Form provides a procedure to follow when 

considering the statutory penalty factors but does not specifically instruct the ANR on how to 

adjust penalties based on those factors, and neither do the Penalty Rules. Stipulated Statement 

of Material Facts (SOMF) ¶ 36 – 42. Where there are no directives, ANR has discretion to decide 

how and whether to weigh the factors and adjust penalties as it finds appropriate depending on 

the circumstances of each case. This discretion matters less under de novo review, but it is 

preserved on review of an AOD. The environmental enforcement statues and the Penalty Rules 

allow ANR to exercise significant discretion in its determination as to the appropriate penalties 

for the violations at issue, and those penalties survive review unless shown to be insufficient. 

Analysis

CLF identifies four areas of insufficiency in support of its request that the Court vacate the 

AOD: 1) ANR’s failure to increase the penalty for the purpose of deterrence; 2) the inconsistency 

of the AOD when compared to prior determinations, specifically with regard to whether 

violations are grouped together for the purposes of assessing penalties and whether they are 

treated as continuous; 3) ANR’s economic benefit analysis; and 4) penalty mitigation due to ANR’s 

delay in enforcement.
17

Deterrence

Starting with the issue of deterrence, CLF argues that the $21,750 penalty amount is 

insufficient to further Chapter 201’s goal of deterring repeated violations of environmental laws. 

10 V.S.A. § 8001(5). Chapter 201’s deterrence purpose corresponds with § 8010(b)(6) of the

penalty factors that ANR must consider when assessing a penalty. 10 V.S.A. § 8010(b)(6) (ANR 

“shall consider . . . the deterrent effect of the penalty”). Deterrence is incorporated into the 

Administrative Penalty Form based on these penalty factors and on the Agency’s Penalty Rules 

in two ways. A respondent’s “record of compliance with the statutes specified in 10 V.S.A. 

Section 8003 or related rules, permits, orders, or assurances of discontinuance in the seven years 

preceding the violation” receives a score of 0 – 3 that corresponds to the number of prior 

violations, and the form also allows ANR to increase the initial penalty amount if “reasonably 

necessary” to deter “this violation, or similar violations, in the future.” Exh. 26, Administrative 

Penalty Form. The language in the Administrative Penalty Form mirrors that in ANR’s Penalty 

Rules, which instructs ANR to consider compliance history that is relevant to the statutes 

specified in 10 V.S.A. § 8003 and which gives ANR the option of adjusting the penalty for the 

purposes of deterrence but does not require it. Exh. 27, Penalty Rules §§ 20-302(b)(4), (e)(2). 

CLF challenges ANR’s assessment of Respondent’s compliance history, citing alleged 

violations and violations issued by other state agencies that ANR did not incorporate into its 

Administrative Penalty Form calculation. Specifically, CLF asserts that ANR should have increased 

the penalty for the purpose of deterrence because Respondent allegedly violated wetland 

regulations on August 13, 2020 and August 24, 2020 with activity related to tile drain installation 

while parties were negotiating the terms of the AOD. SOMF ¶¶ 30 – 35. CLF also cites to the 

Corrective Action Warning Letters that Respondent received on April 9, 2018 and November 15, 

2019 from the Agency of Agriculture, Food & Markets (AAFM) for violations related to 

Respondent’s Large Farm Operation (LFO) Permit, the LFO Rule, and the Required Agricultural 

Practices Regulations. SOMF ¶¶ 16, 17. 

Finding no final judicial orders concerning Agency rules, regulations, or statutes issued to 

Respondent in the last seven years, ANR calculated a severity rating in the Administrative Penalty 

Form for Respondent’s violations without adding points for prior violations. SOMF ¶¶ 11, 14. 
18

Neither the alleged August 2020 violations nor the violations related to the LFO permit fall inside 

the scope of prior violations the Penalty Rules instruct ANR to consider. The Corrective Action 

Warning Letters sent by AAFM do not relate to the statutes specified in 10 V.S.A § 8003, and the 

alleged violations have not yet been shown to be violations. ANR sent two Notice of Alleged 

Violation (NOAV) letters to Respondent in January 2021 but has yet to initiate formal 

enforcement. See SOMF ¶¶ 31, 35. Further, the parties had not yet entered into the AOD when 

Respondent allegedly committed the violations in August of 2020. SOMF ¶ 2 (parties entered 

into the AOD in the end of September 2020). ANR acted within its discretion in determining that 

it was not necessary to increase the penalty amount for the purposes of deterrence when 

Respondent had no prior history of noncompliance with ANR rules and the alleged violations 

occurred before the terms of the AOD had been settled and could be expected to deter. 

The Court is not persuaded by CLF’s argument that the AOD is insufficient to deter 

repeated violations in the absence of an additional penalty increase. ANR considered the 

deterrent effect of the AOD as a whole, the $21,750 penalty amount and the accompanying cost 

of the compliance directives, and determined that it was sufficient to deter repeated violations 

without an additional increase. SOMF ¶¶ 22, 28. In addition to the penalty, Respondent will 

incur significant costs to come back into compliance such as paying a consultant to develop site 

and restoration plans, and paying the labor costs of removing the fill, replanting vegetation, and

monitoring the site for three years. SOMF ¶ 20. Our determination that the AOD provides 

sufficient deterrence is bolstered by Respondent’s cooperation with ANR. Respondent took 

prompt remedial action to address the violation of 10 V.S.A. § 1259(a) in response to the NOAV, 

and has taken steps toward restoration in response to the formal enforcement of the violations 

of 10 V.S.A. § 913(a) and Vermont Wetland Rules § 9.1. SOMF ¶ 22 – 24, 29. CLF has not shown 

a preponderance of the evidence that the AOD is insufficient to carry out the purpose of 

deterrence. 

Consistency in Enforcement

CLF also takes issue with the way ANR assessed a single penalty for the violations of 10 

V.S.A § 913(a) in the AOD, and the way ANR did not classify all three violations as continuing 

violations subject to penalties per day of violation. Arguing that these approaches diverge from 
19

previous penalty assessments, CLF asserts that such inconsistencies are insufficient to support an 

even-handed, fair, and consistent system for assessing administrative penalties. 10 V.S.A. § 

8001(3), (6).

ANR assessed a single penalty of $15,000 for both the Panton Road and Pease Road 

Wetlands violations of 10 V.S.A. § 913(a) and Vermont Wetland Rules § 9.1 in the AOD. SOMF ¶ 

6. Respondent’s violative activities included the removal of vegetation and placement of fill 

within portions of the Panton Road Wetland and it’s 50-foot wetland buffer area in May 2016, 

and vegetation removal, dredging, and filling within portions of the Pease Road Wetland and its 

50-foot wetland buffer area in June 2017. SOMF ¶ 7. ANR decided to group the two wetland 

violations because they both involved the same landowner, required similar compliance 

directives, and though they were not on the same site, they were in the same general vicinity, 

being less than three miles away from each other and part of larger wetland complexes. SOMF 

¶¶ 3, 7. Additionally, ANR notified Respondent of both violations in the same NOAV and found 

that neither violation resulted in a substantial harm or a substantial threat of harm to the 

environment or public health. SOMF ¶¶ 7, 9. 

CLF argues that ANR based its decision to group the wetland violations on factors that are 

not the ones this Court and ANR have previously used. We note that ANR’s decision of whether 

to assess a separate penalty for each violation is discretionary. Under 10 V.S.A. § 8010(c)(1), ANR

“may” assess a penalty up to the maximum “for each determination of a separate violation.” The 

Court has recognized ANR’s discretion in this capacity, explaining that ANR “has discretion to 

calculate and assess one penalty for events that result in more than one violation or to calculate 

and assess a separate penalty for each violation stemming from the same activity.” Agency of 

Natural Resources v. Tobin, No. 94-8-18 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div. Mar. 14, 2019) 

(Walsh, J.). Searching for requirements in the absence of statutory or administrative ones, CLF 

cites to a number of cases in which the Court decided whether to assess separate penalties in an 

AO depending on the fact-specific relationship between the violations. The cases do not limit the 

specific circumstances under which ANR can decide to group penalties. Furthermore, the

discretionary decisions the Court makes in its de novo review of an AO may serve as guidance, 

but do not control ANR’s own exercise of discretion in negotiating an AOD. ANR decided not to 
20

assess separate penalties for the two wetland violations in this matter based on the facts of the

relationship between the violations, and it is undisputed that this determination is consistent 

with the approach it has taken in prior enforcement matters. SOMF ¶¶ 7, 9, 11. 

CLF also argues that because all three violations meet the criteria in the Penalty Rules for 

classification as continuing violations, ANR’s decision not to classify them as such in the AOD 

undermines Chapter 201’s purposes of promoting an even-handed, fair, and consistent system 

of calculating administrative penalties. The Penalty Rules establish that ANR “may consider” a 

violation that “continues longer than one day as a continuing violation subject to additional 

penalties for each day the violation continues.” Exh.27, Penalty Rules § 20-105. The Penalty 

Rules explicitly give ANR discretion in its classification even if the violation meets the criteria by 

continuing longer than one day, as do the statutory penalty factors. 10 V.S.A. § 8010(c)(1) (“if

the Secretary determines that a violation is continuing, the Secretary may assess a penalty . . .”) 

(emphasis added). 

ANR exercised the discretion afforded to it when it decided not to classify the wetland 

violations as continuing based on the factual circumstances, factors such as whether 

Respondent’s actions had discrete endpoints, whether there was measurable or discernable 

additional harm on each consecutive day, and whether ANR interacted with Respondent during 

the period in question. SOMF ¶ 13. ANR decided not to classify the discharge violation as 

continuing because it found that the penalty in the AOD was sufficient to carry out the purposes 

of 10 V.S.A. § 8001 without additional daily penalties along with other factors. SOMF ¶ 18. While 

CLF objects to these factors for being “new and different,” it acknowledges the absence of any 

guidance as to how ANR should be deciding the classification question. It is undisputed that these 

approaches are consistent with the approach ANR has taken in other enforcement matters. 

SOMF ¶¶ 13, 18. 

The AOD only fails if it is insufficient to carry out the purposes of Chapter 201. CLF objects 

to the way ANR exercised its discretion on the separate penalty and continuing violation issues 

but does not challenge the discretion itself nor provide sufficient evidence that ANR’s decisions 

are not even-handed, fair, or consistent with previous AODs. 
21

Economic Benefit

CLF also seeks to prove that the AOD is insufficient for failure to implement the Chapter 

201 purpose of preventing unfair economic advantage. 10 V.S.A § 8001(2). ANR must consider 

the economic benefit that Respondent may have gained from the violations to the extent 

necessary to ensure the AOD sufficiently executes this purpose of Chapter 201. It is up to ANR 

to decide, however, whether it is necessary to specifically increase the penalty amount in the 

AOD in order to do so. See 10 V.S.A. § 8010(c)(2) (“In addition to any penalty assessed . . . the 

Secretary may also recapture economic benefit resulting from a violation” up to the statutory 

maximum). For these violations, ANR found it unnecessary to adjust the penalty for the purpose 

of recapturing economic benefit because it determined that the costs of complying with the AOD 

will outweigh any economic benefit Respondent received. 

CLF’s argument that ANR did not perform an accurate economic benefit calculation does 

not withstand the evidence supporting the ANR’s conclusion that the full costs imposed by the 

AOD will be greater than Respondent’s economic benefit. For the discharge violation, 

Respondent did not receive economic benefit from the unpermitted discharge and did not save 

money by failing to address the discharge sooner. SOMF ¶ 27. If anything, Respondent incurred 

costs by having to make structural improvements to eliminate the discharge. SOMF ¶ 26. 

Respondent received some economic benefit from the sale of timber and use of additional acres 

of cropland on a two to three acre site associated with the Panton Road Wetland violation, 

though it was minimal due to the small size of the area. SOMF ¶¶ 3, 20, 21. Considering the 

substantial cost of restoring and monitoring the wetland in addition to the $21,750 penalty, ANR 

reasonably found that the terms of the AOD outweigh any economic benefit Respondent could 

have received from the violations. Respondent confirmed this conclusion, stating that the costs 

of remediating the wetland violations “will dramatically outweigh any minor economic benefit” 

received from the violations. SOMF ¶ 21. CLF has not shown a preponderance of the evidence 

that the AOD is insufficient to prevent unfair economic advantage.
22

Mitigating Circumstances

Lastly, CLF challenges ANR’s decision to mitigate the penalty for an unreasonable delay in 

enforcement of the wetland violations. CLF argues that ANR should not have reduced the penalty 

by 25% because the delay was not unreasonable. The determination as to the reasonableness of 

the delay and the appropriate mitigation is a matter of discretion. ANR is required to consider 

the presence of mitigating circumstances such as unreasonable delay, 10 V.S.A. § 8010(b)(2), and 

“may” decide to reduce the penalty amount because of them. Exh. 27, Penalty Rules, § 20 –

302(e)(1). 

ANR discovered the Panton Road Wetland violation in May 2016 and the Pease Road 

Wetland violation in June 2017. SOMF ¶ 24. It issued a NOAV for both in July 2017 but did not 

initiate a formal enforcement action until April 2020. Id. Some of the time between the NOAV 

and the formal enforcement can be attributed to ANR’s decision in the fall of 2017 to allow

additional time to complete restoration so Respondent could harvest crops. Id. In the spring of 

2018, however, ANR did not make further attempts at delivery or enforcement after the 

registered mail it sent to Respondent was returned. Id. ANR consequently had no 

communication with Respondent for the two years between spring 2018 and spring 2020. SOMF 

¶¶ 24, 25. This delay comes after ANR had already given Respondent time to voluntarily comply 

by extending the deadline in fall 2017, and after two years had already passed since the discovery 

of the first violation in spring 2016. 

ANR acted within its discretion when it determined that its delay in pursuing enforcement 

for the wetland violations warranted mitigation, and its determination is reasonably supported 

by the stipulated facts. More importantly to the scope of review, the Court has reviewed the 

mitigated penalty under the purposes of Chapter 201 in each of the previous sections by virtue 

of reviewing the AOD and has not found it to be insufficient. CLF has not established that the 

mitigation made the AOD insufficient to carry out the purposes of Chapter 201. 

Conclusion

For the foregoing reasons, the Court does not find that the penalty amount in the

Assurance of Discontinuance is insufficient to carry out the purposes of the Administrative 
23

Environmental Law Enforcement statutes in Chapter 201. The Court accordingly DENIES CLF’s 

motion for summary judgment and enters judgment in favor of ANR. ANR’s motion to strike CLF’s 

Reply is DENIED.

The Assurance of Discontinuance, signed by Respondent on September 21, 2020, and filed 

with the Superior Court, Environmental Division, on November 19, 2020, is hereby entered as an 

order of this Court, pursuant to 10 V.S.A. § 8007(c).

Electronically Signed: 12/10/2021 1:56 PM pursuant to V.R.E.F. 9(d).

Thomas G. Walsh, Judge

Superior Court, Environmental Division