In re Diverging Diamond Interchange Act 250 (R.L. Vallee, Inc.)

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2020 VT 98

No. 2020-147

In re Diverging Diamond Interchange Act 250 Supreme Court
(R.L. Vallee, Inc., Appellant)
On Appeal from
Superior Court,
Environmental Division

September Term, 2020

Thomas G. Walsh, J.

Jon T. Anderson of Primmer Piper Eggleston & Cramer, and Alexander J. LaRosa of MSK
Attorneys, Burlington, for Appellant.

Thomas J. Donovan, Jr., Attorney General, and Justin Kolber and Jenny E. Ronis, Assistant
Attorneys General, Montpelier, for Appellees State of Vermont, Agency of Transportation,
Natural Resources Board, and Agency of Natural Resources.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. REIBER, C.J. Plaintiff R.L. Vallee, Inc. appeals the Environmental Division’s

decision granting an Act 250 permit to the Vermont Agency of Transportation (VTrans) for a

highway project involving the reconfiguration of an interstate exit. Vallee argues that the court

applied the incorrect standard in analyzing phosphorus discharges under Act 250 Criterion 1 and

improperly evaluated the evidence of phosphorus and chloride discharges under Criterion 1. We

conclude that the Environmental Division applied the correct legal standard to evaluate discharges,

and properly considered the evidence before it in determining that the project complies with

Criterion 1. Accordingly, we affirm.
¶ 2. In June 2018, the Environmental Division granted VTrans’s application for an Act

250 permit for the project. Vallee and Timberlake Associates, LLP, appealed.1 In August 2019,

this Court reversed the issuance of the Act 250 permit and remanded the matter for the

Environmental Division to consider whether the project would cause undue water pollution due to

increased phosphorus and chloride discharges. In re Diverging Diamond Interchange SW Permit,

2019 VT 57, ¶ 1, __Vt. __, 218 A.3d 564. The Environmental Division held a three-day trial

considering these questions. In April 2020, the court issued the decision on appeal, in which it

concluded that the project would not cause undue water pollution and granted VTrans’s application

for the Act 250 permit.

¶ 3. In its decision, the Environmental Division found the following facts, which are

undisputed. The project involves a proposed diverging diamond interchange at Exit 16 off I-89 in

Colchester and related construction on U.S. Route 2/7. The project will increase the impervious

surface by 1.2 acres and will increase the roadway by 0.38 lane miles.2 Of the 0.38 new lane miles,

VTrans owns and is responsible for winter maintenance of 0.29 lane miles and the Town of

Colchester owns and is responsible for maintenance of 0.09 lane miles. The project area discharges

stormwater runoff to Sunnyside Brook, which ultimately flows to Lake Champlain. Stormwater

runoff contains phosphorus and chloride, among other constituents. Currently, there is no

permitted stormwater treatment system in the project area. The project will install a stormwater

treatment system. The Vermont Department of Environmental Conservation (DEC) issued a

stormwater discharge permit for the project to address new discharges.

¶ 4. Because the project increases impervious surface, it will increase the discharge of

phosphorus into Sunnyside Brook and, ultimately, to Lake Champlain. VTrans plans to treat the

1
Timberlake Associates, LLP did not participate in this appeal.
2
According to Vallee, a “lane mile” is a term of art. One lane mile is equal to one mile,
or 5,280 feet, of roadway with a width of approximately eleven feet.
2
phosphorus discharges through grass channels, which it estimates will remove approximately forty

percent of phosphorus from stormwater runoff.

¶ 5. Sunnyside Brook is not currently listed as impaired for phosphorus. Lake

Champlain, however, is currently listed as impaired for phosphorus. In total, the main lake

segment of Lake Champlain receives about 359,000 pounds of phosphorus each year. In 2016, the

United States Environmental Protection Agency (EPA) adopted a Total Maximum Daily Load

(TMDL) for phosphorus entering Lake Champlain. A TMDL creates a “pollution budget” that

calculates how much pollution a water body can manage while maintaining appropriate water

quality standards. The Lake Champlain phosphorus TMDL does not prohibit future development

or discharges, but it does require “developed land” to reduce discharges in a manner that offsets

future growth. The State of Vermont has adopted an Implementation Plan to comply with the

phosphorus TMDL. While neither regulation binds the project, the Environmental Division

acknowledged that they “provide helpful context on Vermont’s approach to phosphorus pollution,

and guidance on [the Vermont Agency of Natural Resources’] current policies and priorities.”

¶ 6. The project will also cause an increased discharge of chloride into Sunnyside

Brook. Both VTrans and the Town of Colchester use chloride as part of routine winter

maintenance to remove snow and ice from the roadways. Once applied to the roads, chloride is

discharged into waterways as a part of stormwater runoff. Chloride cannot be removed from

stormwater.

¶ 7. Sunnyside Brook is currently listed as impaired for chloride. The 2011 Vermont

Water Quality Standards do not specifically address chloride. There is no chloride TMDL in effect

for the Sunnyside Brook watershed, although the DEC is currently preparing one. In 2014,

Vermont adopted two chloride standards set by the EPA. The acute standard, at 860 mg/L, is the

highest concentration of chloride to which aquatic life can be exposed for a short period—usually

one hour, once every three years—without deleterious results. The chronic standard, at 230 mg/L,

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is the highest concentration of chloride to which aquatic life can be exposed for an extended

period—usually four days, once every three years—without deleterious effects.

¶ 8. In its analysis, the Environmental Division first considered whether the project

would cause undue phosphorus pollution in Lake Champlain. It defined “undue” to mean “more

than necessary—exceeding what is appropriate or normal.” The court found that the project

complied with all applicable regulations, weighing in favor of compliance with Criterion 1.

¶ 9. The court next determined that the project would create an “exceedingly small

amount” of additional phosphorus pollution when compared to the total amount of phosphorus

discharged into Lake Champlain on a yearly basis. In making this determination, the court

acknowledged conflicting testimony by VTrans’s and Vallee’s experts as to the amount of

additional phosphorus discharge created by the project. Based on their different projections,

VTrans’s expert calculated that the project would increase phosphorus discharge by 0.11 pounds

per year, while Vallee’s expert found that the project would increase phosphorus discharge by 1.62

pounds per year. While the court “found both experts credible,” it held that Vallee’s expert failed

to refute VTrans’s claim that his estimate was overinclusive or explain why VTrans’s method was

inaccurate. However, it concluded that under either estimate, the likely amount of additional

phosphorus pollution was extremely small. The court agreed that Criterion 1 contains no

“automatic allowance for de minimis water pollution,” but noted that the “amount of the pollution”

was an important factor, and here the amount of pollution was small. The court thus found this

factor weighed in favor of compliance with Criterion 1.

¶ 10. The court next looked to the floodplains and their ability to support phosphorus

disposal. Again, the experts presented conflicting evidence about the capacity of wetlands and

floodplains to retain phosphorus, but they agreed that phosphorus could be retained in some

circumstances. Based on this evidence, the court found that the floodplain had capacity to retain

phosphorus on some occasions, but “afford[ed] little weight to this conclusion.”

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¶ 11. The court next looked to mitigation measures that could reduce the amount of

pollution discharged. VTrans’s experts testified that the grass channels could remove forty percent

of the phosphorus discharge, while Vallee’s expert testified that the channels could remove around

nine percent. Even accepting Vallee’s expert’s conclusion, the court found that the channels

effectively reduced phosphorus pollution. Vallee’s expert also presented evidence that additional

mitigation measures were available, but the court afforded little weight to this evidence for two

reasons. First, Vallee’s expert testified that using a different filter material in the channels would

increase mitigation, but he did not quantify the amount of additional phosphorus that could be

removed through this measure. Second, Vallee introduced a memorandum that discussed

additional off-site treatment practices but argued that these practices would require an amended

Act 250 application and remand. Accordingly, the court determined that these measures were not

“reasonably available” to VTrans. As such, the court determined that VTrans presented evidence

of sufficient mitigation measures, and Vallee failed to demonstrate that additional mitigation was

needed.

¶ 12. Finally, the court considered the nature of the pollution and the affected area. The

court noted that while the goal of Act 250 is to protect and conserve Vermont’s environment, the

statute balances environmental protection against the need for development and does not prohibit

all discharges of pollutants. Even though Lake Champlain is impaired for phosphorus, the

Phosphorus TMDL likewise does not prohibit all discharges. Accordingly, the court determined

that Vallee’s argument that any phosphorus discharge into Lake Champlain is necessarily undue

“direct[ly] contraste[ed] with the governing law and policy on the matter.” Instead, the court

weighed the Criterion 1 factors and determined that “[t]he cumulative evidence . . . weighs in

VTrans’[s] favor,” concluding that the project’s phosphorus discharges did not create undue water

pollution.

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¶ 13. The court next considered whether the project would cause undue chloride pollution

in Sunnyside Brook. As with phosphorus, the project is not bound by specific chloride discharge

standards. The court’s analysis of chloride pollution differed from its phosphorus analysis,

however, because no chloride TMDL existed and the court had “no information regarding

Vermont’s present or future chloride pollution plans or policies.” The court thus weighed the

project’s chloride discharges in the context of VTrans’s duty to maintain safe roads during the

winter and Sunnyside Brook’s status as impaired for chloride.

¶ 14. Vallee’s expert studied Sunnyside Brook’s chloride levels for two years. He found

that chloride levels in the brook nearly always exceed the chronic standard and exceeded the acute

standard on thirty-two occasions. He estimated that 360.7 tons of chloride is currently applied per

year in the Sunnyside Brook watershed, and VTrans currently applies 79.4 tons. He calculated

that VTrans would add an additional 3.3 tons of chloride per year in maintaining the 0.29 additional

lane miles created by the project. He also calculated that the Town of Colchester would add an

additional ton of chloride per year in maintaining the 0.09 additional lane miles created by the

project.

¶ 15. The court found that VTrans uses chloride in winter road maintenance to fulfill its

statutory duty to keep state highways safe for travel. In carrying out this duty, VTrans presented

evidence showing its “history of chloride reduction and a commitment to further improvement.”

VTrans’s Snow and Ice Control Plan contains several best management practices to reduce

chloride, and implementation of the plan corresponded with a nine-percent reduction in VTrans’s

average salt use. The project’s Chloride Management Plan was created in accordance with the

statewide Snow and Ice Control Plan, and the court found that VTrans’s expert testified credibly

about VTrans’s compliance with the plan and ongoing commitment to reduce chloride use. The

court also found that the Chloride Management Plan was developed in accordance with the Town

of Colchester’s Snow and Ice Removal Plan.

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¶ 16. Vallee argued that VTrans had additional mitigation measures available to reduce

chloride discharges and had to implement these measures to show that the project would not cause

undue water pollution. VTrans’s expert testified that VTrans was currently implementing or

testing several of these measures. However, he also explained that some of the proposed site-

specific best management practices posed safety concerns. Because VTrans’s expert was “directly

responsible for VTrans’[s] winter maintenance activities,” the court gave great weight to his

testimony. The court reiterated that permit applicants are not required to take all available

mitigation measures to show that pollution is not undue. Further, Vallee did not present evidence

quantifying the amount of chloride reduction that would result from implementing these measures.

In weighing these factors, the court concluded that the project’s chloride discharges did not create

undue water pollution. Accordingly, the court found that the project complied with Criterion 1

and granted VTrans’s application for an Act 250 permit for the project. This appeal followed.

¶ 17. On appeal, Vallee argues that (1) the Environmental Division improperly applied a

de minimis standard in evaluating phosphorus pollution under Criterion 1 and accordingly erred

in finding that the phosphorus discharge would not cause undue pollution, and (2) the

Environmental Division erred in finding that the chloride discharge would not cause undue

pollution.

¶ 18. “We review the Environmental Division’s legal conclusions de novo and its finding

of facts for clear error.” In re N.E. Materials Grp., LLC, 2019 VT 55, ¶ 6, ___ Vt. ___, 217 A.3d

541. We give significant deference to the Environmental Division’s factual findings. In re Route

103 Quarry, 2008 VT 88, ¶ 4, 184 Vt. 283, 958 A.2d 694. We will determine that the court’s

factual findings are clearly erroneous only if there is no credible evidence to support them. In re

Korrow Real Estate, LLC Act 250 Permit Amendment Application, 2018 VT 39, ¶ 17, 207 Vt.

274, 187 A.3d 1125.

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¶ 19. Under Criterion 1, Act 250 permit applicants must show that the development will

not cause “undue water or air pollution.” 10 V.S.A. § 6086(a)(1). Criterion 1 does not define

when pollution is “undue.” However, it does require consideration of “at least” the following

factors:

the elevation of land above sea level; and in relation to the flood
plains, the nature of soils and subsoils and their ability to adequately
support waste disposal; the slope of the land and its effect on
effluents; the availability of streams for disposal of effluents; and
the applicable Health and Environmental Conservation Department
regulations.

Id. As we have previously explained, whether pollution is undue is a highly fact-specific inquiry.

Diverging Diamond Interchange SW Permit, 2019 VT 57, ¶ 44. The court can consider “any

factors relevant to a determination of whether a proposed project will cause undue pollution.” Id.

¶ 45. The Environmental Division typically considers “the nature and amount of the pollution, the

character of the surrounding area, whether the pollutant complies with certain standards or

recommended levels, and whether effective measures will be taken to reduce the pollution.” See

N.E. Materials Grp., LLC, 2019 VT 55, ¶ 28 (quotation omitted).

¶ 20. We begin with Vallee’s argument that the court erroneously applied a de minimis

standard under Criterion 1. Vallee contends that because the court characterized the amount of

phosphorus discharged by the project as “exceedingly small,” the court improperly created a de

minimis exception to the analysis under § 6086(a)(1). We disagree. In North East Materials

Group., LLC, we explained that Criterion 1 is a “highly fact specific” inquiry that depends on

many factors, including “the nature and amount of the pollution.” 2019 VT 55, ¶ 28 (quotation

omitted). In evaluating this factor, the Environmental Division considered testimony from both

parties’ experts regarding the amount of phosphorus the project would discharge. Although the

experts presented different estimates, the court found that even under Vallee’s higher estimate, the

amount of phosphorus discharged was small, representing .00045 percent of the total amount of

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phosphorus entering Lake Champlain annually. This factual finding is supported by the record

and is entitled to substantial deference. Route 103 Quarry, 2008 VT 88, ¶ 4.

¶ 21. Thus, the court did not apply a de minimis standard, and Vallee’s argument

mistakenly characterizes the court’s factual finding as a legal standard.3 In fact, the court agreed

with Vallee that “there is no . . . automatic allowance for de minimis water pollution under

Criterion 1.” The court properly engaged in a multi-factor inquiry to determine whether the project

caused undue phosphorus pollution.4 See N.E. Materials Grp., LLC, 2019 VT 55, ¶ 28 (listing

factors). The court’s finding that the project would cause an “exceedingly small” increase in

phosphorus discharge was only one factor supporting the court’s conclusion. The court also

weighed the project’s compliance with applicable regulations, the ability of the floodplains to

retain phosphorus, and available mitigation measures. Based on the evidence presented by both

parties’ experts, the court found that the project would discharge a small amount of phosphorus

and VTrans planned to implement measures to effectively mitigate some of this discharge.

3
Vallee argues that it is improper for courts to apply a de minimis exception to pollution
control regulations, citing Conservation Law Foundation v. Burke. 162 Vt. 115, 121, 645 A.2d
495, 499 (1993). We find this argument unavailing in this case, as the air pollution regulations at
issue in Burke are not comparable to § 6086(a)(1). In Burke, the applicable regulations set an
emissions limit for certain contaminants and prohibited emissions exceeding that limit. ANR
granted an air pollution permit even though the emissions exceeded those limits because the excess
was de minimis. This Court found that granting a permit in such circumstances was “inconsistent
with the structure and obvious intent of the regulation.” Id. By contrast, § 6086(a)(1) does not
prohibit pollution above a certain numerical level. Instead, it directs courts to consider “applicable
Health and Environmental Conservation Department regulations,” among other factors. 10 V.S.A.
§ 6086(a)(1). Given the statutory differences, Burke does not govern here—and in any event, the
court did not apply a de minimis standard.
4
Under 10 V.S.A. § 6086(d), a valid permit may entitle an applicant to a rebuttable
presumption of compliance with Act 250 criterion. See Diverging Diamond Interchange SW
Permit, 2019 VT 57, ¶ 43. Recognizing that the project’s stormwater permit was approved in
accordance with regulations that did not set specific standards for phosphorus or chloride, the
Environmental Division did not rely on this presumption of compliance and instead evaluated the
project’s phosphorus and chloride discharge on the merits. Accordingly, we review the court’s
decision based on its determination under these factors without any presumption of compliance.
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¶ 22. Vallee does not challenge these findings as erroneous. Instead, Vallee argues that

any additional amount of phosphorus discharge represents “an unnecessary increase in

impairment” and that all mitigation measures must be employed to find that pollution is not undue.

This misstates applicable precedent. It is undisputed that Lake Champlain is impaired for

phosphorus. However, the plain language of § 6086(a)(1) does not prohibit all discharges. Instead,

the multi-factor analysis required by § 6086(a)(1) reflects Act 250’s policy of balancing economic

development with environmental protection. See In re Village Assocs. Act 250 Land Use Permit,

2010 VT 42A, ¶ 17, 188 Vt. 113, 998 A.2d 712 (“[T]he conservation goals of Act 250 have always

been balanced against the economic necessity of development . . . .”). Similarly, the Phosphorus

TMDL—though not binding on this project—anticipates new development and does not bar new

discharges. Instead, these policies rely upon stormwater permitting to ensure compliance with the

TMDL. In sum, the discharge of a pollutant into an impaired waterbody does not inevitably render

that pollution undue under Criterion 1’s fact-based balancing inquiry.

¶ 23. We further disagree that the mere possibility of additional mitigation measures,

without more, necessarily requires a finding that pollution is undue in this instance. Under

Criterion 1, courts may consider, among other factors, “whether effective measures will be taken

to reduce the pollution.” N.E. Materials Grp., LLC, 2019 VT 55, ¶ 28. In this case, VTrans

provided evidence of a “carefully designed stormwater treatment system” that uses grass channels

to remove phosphorus. Vallee’s expert testified that additional mitigation measures were available

but could not quantify the expected reduction in phosphorus load or offer an opinion as to the

effect of the reductions. The Environmental Division properly weighed this evidence and

determined that VTrans’s proposal will effectively mitigate phosphorus pollution. Vallee’s

argument provides no grounds to disturb this conclusion.

¶ 24. We next consider Vallee’s argument that the Environmental Division erroneously

found that the project would not cause undue chloride pollution. Vallee first asserts that the court

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improperly afforded VTrans a presumption of compliance based on the stormwater permit. We

disagree. The project’s stormwater permit vested in regulations that did not include specific

standards for phosphorus or chloride discharges. Because these pollutants are at issue, the court

was “concerned about the strength of a presumption arising under these circumstances.” The court

expressly evaluated each pollutant on the merits, rather than relying upon a presumption.

¶ 25. Vallee next argues that the court improperly shifted the burden of proof to Vallee.

However, the court’s decision shows that it properly assigned the burden of proof to VTrans. The

court considered all the evidence presented by VTrans, including the statewide Snow and Ice

Control Plan, the project’s Chloride Management Plan, and “extensive expert testimony.” Based

on this evidence, the court concluded that VTrans satisfied its burden. The court then considered

Vallee’s evidence, and concluded that it was insufficient to disturb that conclusion. This reasoning

did not erroneously shift the burden of proof to Vallee. In essence, Vallee seeks to revive its

argument that any discharge to an impaired water body is categorically undue. For the same reason

that this argument failed with phosphorus, it also fails with chloride.

¶ 26. Vallee next contends that the court lacked evidence about the Town of Colchester’s

chloride use and thus could not evaluate the project’s chloride pollution. The town is responsible

for maintaining 0.09 lane miles of the project. The court did not make specific findings about the

town’s chloride application. During the hearing, VTrans tried to admit the town’s Snow and Ice

Removal Plan, but Vallee objected because VTrans provided no witness from the Town to go

through the details of the plan, and the court sustained that objection.

¶ 27. However, the court found that the project’s Chloride Management Plan

incorporated by reference the town’s Snow and Ice Removal Plan, and that the project’s plan was

consistent with the town’s plan. A VTrans witness testified that the town’s plan was reasonable

and accords with VTrans’s statewide Snow and Ice Control Plan. VTrans also has a finance and

maintenance agreement with the Town of Colchester, which details the town’s responsibility to

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perform winter maintenance on its roads. Moreover, the order granting the project’s Act 250

permit provides that the project must abide by the conditions imposed by the District Commission.

Condition 2 requires the project to comply with “the permit application, plans, and exhibits on file

with the [DEC] and other material representations,” which includes the Chloride Management

Plan. In sum, we conclude that the Environmental Division had a sufficient evidentiary basis to

consider the town’s chloride application. Further, the above evidence belies Vallee’s claim that

the town’s chloride use is “unregulated.” Based on this evidence, the court did not clearly err in

finding that the project will not cause undue water pollution.

¶ 28. Vallee’s final argument is that the Environmental Division failed to join the Town

of Colchester as a necessary co-applicant. Act 250 Rule 10 provides that the record owner of a

tract of land shall be a co-applicant, “unless good cause is shown to support waiver of this

requirement.” Act 250 Rules, Rule 10(A), Code of Vt. Rules 12 004 060,

http://www.lexisnexis.com/hottopics/codeofvtrules. Good cause can include a showing that the

applicant “effectively controls” part of the land at issue through an agreement that “allow[s] the

imposition of appropriate permit conditions by the District Commission to mitigate adverse

impacts under [Act 250].” Id. If the applicant is a state agency with the power to condemn the

land, no other parties need be joined. Id. The District Commission may also join a non-record

owner if that person’s property interest “is of such significance, therefore demonstrating a lack of

effective control by the applicant,” that the party must be joined. Id. This rule serves three

purposes by ensuring that conditions imposed are enforceable on the record owner, that the record

owner consents to the activity, and that the record owner has the opportunity to participate in the

proceedings. Re: Mark and Pauline Kisiel and Thomas and Cheryl Kaminski, No. 5W1151-1-EB,

Mem. of Decision at 4 (Vt. Envtl. Bd. Feb. 3, 2005),

https://nrb.vermont.gov/sites/nrb/files/documents/5w1151-1-mod_0.pdf [https://perma.cc/9NSR-

CLDD].

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¶ 29. The District Commission has discretion to join a party as a necessary co-applicant.

See In re Pilgrim P’ship, 153 Vt. 594, 597, 572 A.2d 909, 911 (1990) (finding that Board acted

within its discretion to order joinder). In appeals to the Environmental Division, the court

“appl[ies] the substantive standards that were applicable before the [District Commission].” 10

V.S.A. § 8504(h).5 Accordingly, we review the court’s decision for abuse of discretion. In re

Appeal of MDY Taxes, Inc., 2015 VT 65, ¶ 7, 199 Vt. 248, 123 A.3d 1184.

¶ 30. In its order, the Environmental Division reasoned that, as a state agency with the

power to condemn, Rule 10(A) permits VTrans to proceed as the sole applicant. The court also

determined that the portion of the project controlled by the town is not sufficiently significant to

require joinder. The court concluded that VTrans can adequately manage water quality for the

project without the Town’s involvement in the proceedings.

¶ 31. We conclude that the court did not abuse its discretion in denying Vallee’s motion

to join the Town of Colchester, but for a different reason than relied upon by the court. See

Caledonian-Record Pub. Co. v. Vt. State Colls., 2003 VT 78, ¶ 7, 175 Vt, 438, 833 A.2d 1273

(affirming trial court’s decision “based on different reasoning”). The record showed that VTrans

effectively controlled the land such that appropriate permit conditions could be imposed on the

project. The court found that the project’s Chloride Management Plan accords with VTrans’s

statewide Snow and Ice Control Plan, and also incorporates the town’s Snow and Ice Removal

Plan by reference. VTrans’s expert testified that the town’s plan was reasonable. The project’s

Act 250 permit requires VTrans to perform winter road management in accordance with the

Chloride Management Plan. In turn, the finance and management agreement requires the town to

5
Vallee appears to have raised the Town of Colchester’s party status in the first instance
in the Environmental Division. For purposes of this appeal, we assume without deciding that when
determining whether to order the joinder of a necessary co-applicant in the first instance, the
Environmental Division applies the same standards as the District Commission under the Act 250
Rules.
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abide by the Chloride Management Plan. As such, the facts demonstrate that the agreement will

ensure the town’s compliance with the permit conditions. The court therefore did not abuse its

discretion in not joining the town.

Affirmed.

FOR THE COURT:

Chief Justice

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