                                        STATE OF VERMONT
                                      ENVIRONMENTAL COURT

                                       }
    Secretary, Vermont Agency of       }
       Natural Resources,              }
             Plaintiff,                }                            Docket No. 170-10-10 Vtec
                                       }                            (Administrative Order
                   v.                  }                            enforcement proceeding)
                                       }
     Robert Deering and Randy Andrews, }
             Respondents.              }
                                       }

                                 Amended Decision on the Merits1
        This matter came before us for hearing after Robert Deering filed a timely
request for a hearing and gave notice contesting the October 6, 2010 Administrative
Order ( “the Order” or “AO”) issued against him and Randy Andrews (“Respondents”)
by the Secretary of the Vermont Agency of Natural Resources (“ANR”).                              The Order
alleged that Respondents Deering and Andrews directed and conducted alterations of
the White River without first obtaining a permit or emergency authorization, in
violation of the Vermont Stream Flow Regulations located at chapter 41 of title 10 of
the Vermont Statutes Annotated.                   The Order includes an ANR directive that
Respondents pay certain penalties, abide by the applicable Regulations in the future,
and complete other remedial measures as ANR may require.
        The Court thereafter conducted a merits hearing on May 4, 2011. Respondents
appeared2 at the merits hearing and represented themselves. ANR was represented at
the hearing by John Zaikowski, Esq., an ANR staff attorney. At the close of evidence,
the Court offered the parties an opportunity to file post-trial memoranda. Based upon
the relevant evidence presented at the hearing, the Court renders the following factual
and legal determinations, including determinations on ANR’s request for imposition of
penalties and other relief.




1
  This Amended Decision is issued to correct an omission in the prior Decision of September 29, 2011. The only
addition to this Amended Decision is the inclusion of the Rights to Appeal notice on page 5, below.
2
  Respondent Andrews appeared at the merits hearing, even though he failed to request a hearing or enter his
appearance in this matter prior to trial. The Court nonetheless allowed Respondent Andrews to participate in the
hearing.
                                   Factual Findings
1.       Respondent Deering owns property located at 529 Route 100 in the Town of
Hancock, Vermont. The Deering property is bounded on the easterly side by the White
River.
2.       During high water events, Respondent Deering’s property floods as the White
River breaches its banks in the vicinity of his property. During a significant rainstorm
in 2008, the Deering property and some adjoining properties in Hancock were flooded,
suffering severe damage and soil erosion.
3.       The erosion and other damage caused by this 2008 rainstorm were so
significant as to cause Respondent Deering to lose approximately one acre of land. On
the land adjoining Respondent Deering’s property, where his son occupies a single-
family residence, the flood washed away the on-site septic system. Due to the
realignment of the White River, the land in which the water supply well was located is
now in the White River.
4.       In response to the damage to his property in 2008, Respondent Deering
obtained a stream flow alteration permit, issued on an emergency basis, to conduct
remediation work, including work within the water course of the White River. Because
the 2008 rainstorm and the flooding it caused were so significant, the course of the
White River had changed in several areas, including in the vicinity of the Deering
property.
5.       ANR officials worked closely with Respondent Deering in response to the 2008
flooding and erosion of his property and offered guidance as to how he could complete
the necessary remediation work and stay within the authority of his emergency permit
and the applicable stream flow alteration regulations.
6.       In April of 2010, another significant rainstorm occurred and caused the White
River to again exceed its banks and cause erosion and other damage to Respondent
Deering’s property.
7.       In response to the erosion and other damage caused by this 2010 rainstorm,
Respondent Deering hired Respondent Andrews to complete excavation work to
stabilize the westerly bank of the White River. Respondent Andrews, at Respondent
Deering’s direction, brought excavation equipment onto Deering’s property, operated
that equipment along and within the reconfigured channel of the White River, and re-
established approximately 140 linear feet of the bank and channel of the White River.



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To complete this work, Respondent Andrews, again at Respondent Deering’s direction,
brought approximately 300 cubic yards of stone and earthen fill material onto
Deering’s property and deposited it along and into the White River.
8.      At no time prior to completing this work did either Respondent contact ANR
stream flow officials or obtain a stream flow alteration permit to do this work.
Respondents also did not receive any emergency authorization for the work or provide
notice of the work to local or ANR officials, as contemplated by 10 V.S.A. § 1021.
9.      On or about April 26, 2010, ANR officials were notified of Respondent Andrews’
work along the White River on Respondent Deering’s property.          These notifications
came from unnamed citizens who were concerned about excavation equipment being
operated within the banks of the White River.      On cross examination, Respondent
Deering admitted that the work he directed Respondent Andrews to do began on
Friday, April 23rd and continued until Monday, April 26, 2010.
10.     Once ANR officials inspected the work being done on Respondent Deering’s
property, Respondent Andrews immediately stopped; however, he had essentially
completed the work that Respondent Deering had directed him to do.
11.     Respondent Deering’s prior experience with stream flow alteration/remediation
work provided him with knowledge about the applicable regulations and permit
processes.
12.     Respondent Andrews is an experienced excavation contractor and knew or
should have known about the need to inquire of ANR officials concerning stream flow
work.
13.     Respondents’ failure to apply for a stream flow alteration permit prevented ANR
officials from reviewing their work plans and denied potentially affected parties and
town officials the opportunity to review Respondents’ work plans, offer suggested
changes, and contemplate possible impacts to downstream properties.
14.     The work Respondent Andrews performed in the White River, at Respondent
Deering’s direction, most likely impacted properties downstream.           The evidence
presented in this proceeding does not provide a factual foundation for identifying these
specific impacts, but it appears undisputed that these types of unregulated activities
pose a risk of negative impacts to downstream properties.
15.     Now that the work Respondents directed and performed has been completed,
ANR has determined that Respondents should not be directed or allowed to perform



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further remediation work, since such work may cause further unnecessary stream
flow alterations. We find ANR’s assessment credible and adopt it as our factual
finding.

                                                 Discussion
         Respondents do not appear to dispute the substantive legal question now before
this Court: whether the work that they directed and did required a permit under the
applicable statutory provisions (10 V.S.A. §§ 1021 and 1022).                            Respondents have
offered no legal argument to refute ANR’s claims. Further, Respondents were aware of
the statutory provisions that allow persons to take “emergency preventative measures
necessary to preserve life or to prevent severe imminent damage to public or private
property,” provided they give prior notice to both local and ANR officials. 10 V.S.A.
§ 1021(b).      However, Respondents chose to neither seek a stream flow alteration
permit nor give notice for emergency actions. Both Respondents testified at trial and
appeared to the Court to be sincere, credible witnesses. However, the testimony they
provided lacked any contest with the material allegations presented in the Secretary’s
Order.
         Based upon the evidence presented, we conclude that both Respondents knew
their directions and actions violated the Vermont Stream Flow Regulations (title 10,
chapter 41 of the Vermont Statutes Annotated) but made a conscious decision to
ignore their obligations under those Regulations so that they could complete their
work without possible inquiry from local and state officials and potentially affected
parties. We find no authorization for Respondents’ actions and therefore AFFIRM the
October 6, 2010 AO issued by the ANR Secretary against Respondents, under the
authority conferred on this Court by 10 V.S.A. § 8012(b)(1) and (2).
         Pursuant to 10 V.S.A. § 8010(b), ANR also determined and announced an
assessment of penalties in its October 6, 2010 AO. Once an AO is challenged before
this Court, we have the authority to “affirm, modify or reverse any provision of any
[administrative] order.” 10 V.S.A. § 8012(b)(3).3 Based upon the evidence and legal
arguments presented, we conclude that the AO must be AFFIRMED in its entirety,
including the assessment of penalties against Respondent Deering in the amount of

3
   One exception noted in 10 V.S.A. § 8012(b)(3) to our authority to “affirm, modify or reverse” an administrative
order is that we can only affirm “or vacate and remand” any directives contained therein that are effectively
injunctive orders that ANR is authorized to make under 10 V.S.A. § 8008(b)(5). Since our decision here affirms the
AO and does not disturb the directives contained therein, this exception is not implicated.


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$5,400.00 and the assessment against Respondent Andrews in the amount of
$3,600.00.

                                      Conclusion
      For the reasons stated above, we conclude that Respondents Robert Deering
and Randy Andrews violated the Vermont Stream Flow Regulations (10 V.S.A. §§ 1021
and 1022) by directing and conducting unpermitted activities between April 23 and
26, 2010 on Respondent Deering’s property along the White River and located at 529
Route 100 in the Town of Hancock. We therefore AFFIRM the October 6, 2010 AO in
its entirety, including the assessment of penalties against Respondent Deering in the
amount of $5,400.00 and the assessment of penalties against Respondent Andrews in
the amount of $3,600.00.
                  Rights of Appeal (10 V.S.A. §§ 8012(c)(4) and (5))
      WARNING: This Decision and the accompanying Judgment Order will become
final if no appeal is requested within 10 days of the date this Decision is received. All
parties to this proceeding have a right to appeal this Decision and Judgment Order.
The procedures for requesting an appeal are found in the Vermont Rules of Appellate
Procedure (V.R.A.P.) subject to superseding provisions in the Vermont Rules for
Environmental Court Proceedings (V.R.E.C.P.) 4(d)(6). Within 10 days of the receipt of
this Order, any party seeking to file an appeal must file the notice of appeal with the
Clerk of the Environmental Division of the Vermont Superior Court, together with the
applicable filing fee.   Questions may be addressed to the Clerk of the Vermont
Supreme Court, 111 State Street, Montpelier, VT 05609-0801, (802) 828-3276. An
appeal to the Supreme Court operates as a stay of payment of a penalty, but does not
stay any other aspect of an order issued by this Court. 10 V.S.A. § 8013(d). A party
may petition the Supreme Court for a stay under the provisions of the Vermont Rules
of Civil Procedure (V.R.C.P.) 62 and V.R.A.P. 8.
      A Judgment Order accompanies this Decision.           This concludes the current
proceedings before this Court in this enforcement action.
      Done at Berlin, Vermont this 12th day of October, 2011



                                        ______________________________________________
                                          Thomas S. Durkin, Environmental Judge




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