A judge has found a family of Panton dairy farmers in contempt of court after they failed to stop water from coming out of a drainage system on their farm, washing over their neighbors’ property and flowing into Lake Champlain.
Brothers Gerard and Hans Vorsteveld, who operate a large dairy farm in Addison County, must stop the water from flowing out of their fields by Nov. 15 or face a fine of $1,000 per day, according to the decision, written by Addison Superior Court Judge Mary Teachout on Sept. 12.
The Vorstevelds plan to appeal the decision, according to their attorney, Claudine Safar of the Burlington-based firm Monaghan Safar. Gerard Vorsteveld did not respond to a phone call from VTDigger.
Safar called the decision “dramatically incorrect” in an interview on Tuesday, saying Teachout’s ruling “ignores all of the evidence that we put before the court.”
Safar argued that the water coming off the farm is not generated by the farmers themselves and that the increased amount of water that neighbors have seen in recent years is a result of climate change. Because the court is holding the farm responsible for the quality of water that isn’t immediately flowing from the tile drains, “my client is now responsible for dealing with the brown water that is coming off of the town of Panton’s dirt roads,” she said.
But Teachout wrote in her decision that the original court order instructed the Vorstevelds to “prevent the destructive flushing of water that originates from the tile drain system onto Aerie Point land.” Because the farmers have not stopped that water, they have not complied with the court order, Teachout held.
The high-profile case has been playing out since 2020, when the Hopper family, neighbors of the Vorstevelds who live between the farmers and the lake, filed a complaint. In December 2021 and January 2022, a six-day trial led to a decision in March 2022 from Teachout calling for the Vorstevelds to stop the runoff flowing from their farm.
The case has spurred debate about the state’s regulatory system related to agricultural pollution and caused lawmakers to consider whether farmers should have greater protections from nuisance lawsuits by neighbors.
In her March 2022 decision, Teachout found that the Vorstevelds “had committed trespass and nuisance against its downslope neighbor Plaintiff Aerie Point by increasing the volume and velocity of water discharged into two streams that crossed Plaintiff’s land.”
That change in the volume and velocity of water was caused by the Vorstevelds’ tile drainage system, a network of perforated underground pipes that carry the water away from the field.
The system resulted in “the discharge of water in a manner that caused damage in a number of ways, including erosion of land and deposits of sediment and phosphorus,” Teachout wrote in her latest decision.
In a January decision, Teachout found the Vorstevelds in contempt but did not assign penalties while the court waited to see whether a mediation process would identify solutions.
By May, the parties had completed that process “without resolution,” Teachout wrote.
Gerard Vorsteveld estimated that the farmers had spent roughly $60,000 to comply with the 2022 court order, though the court noted in its most recent decision that this money may have been spent anyway on a separate enforcement order issued by the federal Environmental Protection Agency. Teachout wrote that the water coming from the tile drains had become clearer. To emphasize this point, Vorsteveld “captured clear water” at some of these drainage points in a cup and “drank it” during a recent site visit, the court order stated.
“He testified that he did not get sick,” Teachout wrote.
Still, the judge found that once the clear water “gets down to the ditch on the Farm side of Arnold Bay Road, the water that enters the ditch during rainfalls is generally brown and murky, and some is foamy.”
Safar said she doesn’t know how the farmers would comply with the order.
“How are you supposed to stop 300 acres of water from going back where it naturally went in the first place?” she said. “What are you supposed to do with it?”
She noted that tile drains are allowed by Vermont’s Required Agricultural Practices, though state law includes restrictions on how the drains can be used.
“These guys have spent $60,000 doing water quality improvements on their property with absolutely no evidence that there’s any contamination leaving these tile drains, and we’re asking them to either take them out, which is a $3 million expense,” and plug them up, which could cause environmental problems, or truck the water away, she said.
Merrill Bent, an attorney who represents the Hoppers, said the court’s decision “is based largely on the farm’s own evidence and just a very straightforward interpretation of a court order that’s been interpreted multiple times over the last couple of years.”
If the Vorstevelds “can farm responsibly within the confines of their farm, then they wouldn’t need to impose their burden on their neighbor,” she said.
Read the story on VTDigger here: Judge finds Panton dairy farmers in contempt of court, orders fines barring major changes to farm.