Re: Scott and Sheila McIntyre and Abbott and Rosalie Lovett, Docket No. EPR-98-02 (Oct. 28, 1998) State of Vermont WATER RESOURCES BOARD Re: Scott and Sheila McIntyre Authority: 3 V.S.A.  2873(c)(4) and and Environmental Protection Abbott and Rosalie Lovett Rules Docket No. EPR-98-02 DECISION Scott and Sheila McIntyre and Abbott and Rosalie Lovett timely appealed two decisions of the Department of Environmental Conservation, Agency of Natural Resources ("ANR"), granting Subdivision Permits #EC-4-0633-9-R and #EC-4-0633-10 ("Permit Amendment 10") to Dr. Ernest Paquette of Richmond, Vermont. As explained below, the Board affirms the ANR's two permit decisions. I. PROCEDURAL HISTORY A. Proceedings before the ANR On October 3, 1996, Dr. Ernest Paquette filed an application with the ANR seeking state subdivision approval for a two-lot subdivision ("Subdivision"), part of the Paramount Farms project. He specifically sought approval of on-site water supply and wastewater disposal systems for Lots 8 (1.3 acres) and 19 (2.1 acres), each lot and system to serve a single-family residence. The Subdivision is located off Town Highway #17, otherwise known as Dugway Road, in the Town of Richmond, Vermont. On May 23, 1997, the ANR issued Permit #EC-4-0633-9, and on May 28, 1997, issued Subdivision Permit EC-4-0633-9-R, which revised Subdivision Permit EC-4-0633-9 only in the respect that it corrected the name of the town in which the proposed subdivision is located. Therefore, these two permit amendments are treated as one permit ("Permit 9-R") for purposes of this proceeding. Permit 9-R authorized the requested two-lot, single-family residential subdivision, comprised of Lots 8 and 18, served by on-site water supplies and wastewater disposal systems. On March 17, 1998, Dr. Paquette filed an application with the ANR seeking an amend- ment to Permit 9-R. He requested elimination of a pump station for the wastewater disposal system previously approved for Lot 19. On April 16, 1998, the ANR issued Subdivision Permit EC-4-0633-10 ("Permit 10") authorizing this modification. William E. Zabiloski, the ANR's Assistant Regional Engineer, provided staff review of the applications for Permit 9-R and Permit 10. In addition to receiving written and oral comment from Dr. Paquette and his consultants regarding the two permit applications, Mr. Zabiloski received numerous written comments and phone calls from adjoining property owners. In particular, Mr. Zabiloski received comments from the owners of two adjoining and down-gradient properties, Abbott and Rosalie Lovett and Barbara Lynch. Scott and Sheila McIntyre purchased the Lynch property in August 1997. The ANR's record reveals that Barbara Lynch and her successors-in-interest, the McIntyres, provided comment to ANR with respect to applications for Permit 9-R and Permit 10. The rules used by the ANR in the review of this matter were the Environmental Protection Rules, Chapter 1 ("EPRs"), effective August 9, 1996, and the Vermont Water Supply Rules, Chapter 21 ("VWSRs"). B. Proceeding before the Board On May 14, 1998, Scott and Sheila McIntyre and Abbott and Rosalie Lovett ("Appel-lants") jointly filed a Notice of Appeal with the Water Resources Board ("Board") seeking review of the ANR's decisions authorizing the issuance of Permit 9-R and Permit 10. This appeal was filed pursuant to 3 V.S.A. 2873(c)(4) and EPR1-201(E) (Aug. 8, 1996). On May 18, 1998, the Board's Executive Officer deemed the appeal to be substantially complete and docketed this matter as EPR-98-02. On May 27, 1998, a notice of appeal and preheating conference was issued to parties and interested persons. On May 27, 1998, the Board's Chair issued a memorandum asking the ANR to forward its records for Permit 9-R and Permit 10. On June 25, 1998, the ANR filed its records and docu-ments lists for the two permit proceedings. See Water Resources Board Rules of Procedure ("Procedural Rule") 30. On June 30, 1998, the Board's Chair convened a prehearing conference in Montpelier, Vermont, with representatives for the Appellants, the Permittee, and the ANR participating. A Prehearing Conference Report and Order was issued on July 1, 1998. No party objected to the prehearing conference order so it became final and binding. No party requested an opportunity to supplement the ANR's record pursuant to Procedural Rule 30(A). On July 21, 1998, the Appellants filed a Petition for Party Status and requested an opportunity to respond to any responsive memorandum that might be filed by the Permittee. On July 21, 1998, the ANR filed a Motion to Dismiss, arguing that the appeal of Permit 9-R was untimely filed. On August 4, 1998, the Appellants filed a memorandum in Opposition to ANR's Motion to Dismiss. On August 6, 1998, the Board's Chair by memorandum acknowledged receipt of the parties' various filings and set the date for Board deliberations with respect to preliminary issues on August 11, 1998. On August 12, 1998, the Board issued a Memorandum of Decision on Preliminary Issues, granting the Appellants' Petition for Party Status pursuant to Procedural Rule 22(A)(7) and denying the ANR's Motion to Dismiss. On September 4, 1998, the Chair issued a revised Scheduling Order. On September 11, 1998, the Appellants filed their Proposed Findings of Fact, Conclusions of Law, and Order. On September 14, 1998, the Permittee requested oral argument in this matter. On September 21, 1998, a Notice of Oral Argument was issued, with argument scheduled for the Board's regular meeting on October 6, 1998. See Procedural Rule 30(B). On September 25, 1998, the Permittee and the ANR each filed a Memorandum in Response to Appellants' Proposed Findings of Fact, Conclusions of Law and Order. On October 2, 1998, the Appellants' filed an objection to the Permittee's and ANR's September 25, 1998, filings and, in the alternative, asked for an opportunity to make additional responsive argument on October 6, 1998. On October 5, 1998, the Chair issued an Order denying the Appellants' requests of October 2, 1998. On October 6, 1998, the Board heard oral argument with respect to the merits of this appeal. Those parties presenting argument were the Appellants, the Permittee, and the ANR. The Board deliberated with respect to this matter on October 6 and 27, 1998, and closed the record in this matter on October 27, 1998. This appeal is now ready for final decision. In accordance with 3 V.S.A. 2873(c)(4), the Board has based its review on the ANR's record. See In re Appeal of Ann and Paul DesLauriers, Docket No. EPR-93-05, Decision at 3-4 (June 1, 1994). To facilitate its review, the Board provided the parties with an opportunity to file legal memoranda setting forth a statement of facts and conclusions of law based on the ANR's record. See Procedural Rule 30(C). II. ISSUES As framed in the Prehearing Conference Report and Order, the issues in this appeal are: 1. Whether the ANR erroneously interpreted and applied the EPRs in not requiring the Permittee to file a hydrogeologic study in conformance with Appendix 1-7-D (General Criteria Isolation Distances (b)) to determine if there is a connection between the proposed septic systems on Lots #8 and #19 and the two down gradient shallow wells owned by the Appellants prior to issuing Permits 9-R and 10. 2. If the ANR erroneously interpreted and applied the EPRs by issuing these permits without first obtaining a hydrogeologic study from the Permittee, should the Board reverse the permit decisions of the ANR with directions, or remand this matter to the ANR for reconsideration or further proceedings? III. DECISION A. Standard of Review This matter comes to the Board as an appeal filed pursuant to 3 V.S.A.  2873(c)(4). This proceeding is governed by the procedural requirements and appellate standards set forth in Procedural Rule 30. Procedural Rule 30 states in relevant part: Factual conclusions of the [ANR] shall be upheld by the Board if evidence available to and presented to the [ANR] fairly and reasonably supports those conclusions. The [ANR's] interpretation of statutes and rules shall be upheld if not erroneous. The Board has the power to affirm, reverse with directions to the ANR, remand to the ANR for reconsideration or further proceedings, or modify the decision of the ANR, as each case may warrant. Procedural Rule 30. B. Factual Background The Appellants own property that adjoins Lot #8 of the Subdivision. Their domestic water supplies are from two shallow springs, downgradient of the septic system proposed for Lot #8. The Lovetts' spring is 210 feet and the McIntyres' spring is 205 feet from the proposed septic system for Lot #8. The Appellants do not dispute that the leachfield on Lot #8 is not within the Presumptive Minimum Separation Zone for each spring as defined by EPR  1-308(A) and related VWSRs. The Permittee filed his application for Permit 9-R on September 25, 1996. Permit 9-R, ANR Record Item #4. The Appellants alerted the ANR of their concerns about the potential contamination of the Lovett and McIntyre springs as early as October 28, 1996, when the Appellants' consultant, Stephen Revell, Senior Hydrologist with Lincoln Applied Geology, filed a letter with various enclosures with Assistant Regional Engineer Zabiloski. Permit 9-R, ANR Record Item #9. This was followed on October 31, 1996, by a letter to Mr. Zabiloski from Craig Heindel, Senior Hydrogeologist with Nelson, Heindel and Noyes. Permit 9-R, ANR Record Item #9 [sic]. Mr. Zabiloski conducted a site visit of the Lovett and Lynch properties on November 15, 1996, and on November 18, 1996, advised Richard Wheeler, Consulting Engineer for the Subdivision project, that the ANR would have to request additional hydrogeologic information "before permitting." Permit 9-R, ANR Record Item #35. Mr. Zabiloski spoke with Dr. Paquette on November 20, 1996 and told him ANR would require a "hydro study based on [the] concerns of hydrogeologists" but "wasn't sure what the extent of the analysis should be." Permit 9-R, ANR Record Item #35. On November 20, 1996, Mr. Zabiloski wrote to Richard Wheeler, Consulting Engineer for the Subdivision permit application, and requested additional information consistent with the enclosed "Plan / Design Review Checklist." Specifically, under that section of the form addressing "Wastewater Design," Mr. Zabiloski advised Mr. Wheeler that "[h]ydrogeologic studies will be required to isolate Lovett + Lynch springs." Permit 9-R, ANR Record Item #13. In January 1997, Mr. Zabiloski received copies of work plans from two hydrogeologists contacted by Richard Wheeler to conduct hydrogeologic studies in connection with the application for Permit 9-R. On January 17, 1997, the ANR received a work plan, dated January 7, 1997, from Eric Hanson, Project Hydrologeologist with The Johnson Company, to Richard Wheeler, recommending, among other things, that three observation wells be installed on Lot 8 and one on Lot 19, and that water level monitoring be conducted at the two water supplies owned by the Appellants. Permit 9-R, ANR Record Item #15. On January 21, 1998, the ANR received a work plan from Cindy Sprague, Hydrogeologist with Sprague GeoServices, to Richard Wheeler, recommending five soil borings for Lot #8 and three for Lot #19, with groundwater monitoring wells being installed in each boring if groundwater was encountered. Ms. Sprague also recommended that water level measurements be taken at the Appellants' two wells. Permit 9-R, ANR Record Item #16. On February 11, 1998, Mr. Zabiloski spoke with Dr. Paquette by phone. He advised the applicant that he would need to be in contact with his consultants to discuss options as to how extensive testing would be in accordance with the Water Supply regulations. Mr Zabiloski reported in his phone notes: Again stressed that if he chose to do minimum ie: GW [groundwater] monitors to show flow direction, and it didnt show the results he needed he may need to do other testing (per regs) to get approval.... Permit 9-R, ANR Record Item #36. On February 11, 1997, Mr. Zabiloski wrote to Dr. Paquette, sending copies of the correspondence to his consultants, and indicated that based on the history of the project and the existing material submitted with respect to the two lots, hydrogeologic analysis would not be required for proposed Lot #19. However, he advised the applicant that: Hydrogeologic analysis is being required for Lot #8 to show the existing shallow water supplies, located on the Lovett and Lynch Lots, will not be affected by the wastewater disposal system located on Lot #8. This can be accomplished by the criteria listed in the Vermont Water Supply Rule - Chapter 21, Part 11 - Small Scale Water Systems (specifically 11.4.2.0.2 - Reduction of the Minimum Separation Zone). The proposed testing needs to satisfy one of the conditions listed in the subsection. The consultants should be able to establish the testing needed to obtain the results needed. Which condition, or conditions you attempt to resolve is up to you and your consultants to determine as the extent of testing involved varies. Your consultants can adjust their proposals accordingly based on your determination. Permit 9-R, ANR Record Item #18. In response to this letter, the hydrogeologists from The Johnson Company and Sprague GeoServices each filed revised work plans with Richard Wheeler. On February 12, 1997, Eric Hanson revised The Johnson Company's work plan to require the installation of only three observation wells on Lot #8. This proposal was filed with ANR on February 13, 1997. Permit 9-R, ANR Record Item #19. Ms. Sprague submitted a revised work plan of April 8, 1997, a copy of which was filed with the ANR on April 15, 1997. She proposed to install three, rather than the previously proposed five, groundwater monitoring wells. Permit 9-R, ANR Record Item #20. Ms. Sprague described the scope of work for her investigation as focusing on two main items, namely: 1. Characterization of the groundwater flow in the vicinity of the proposed septic system to determine if flow is towards either of the two wells; and 2. Obtain information regarding the characteristics of the Lynch and Lovett wells in order to approximate the likely well head protection area. Permit 9-R, ANR Record Item #20. Ms. Sprague was retained to conduct hyrogeologic tests on Lot #8 and on April 21, 1997, Dr. Paquette wrote to Mr. Zabiloski, reporting that four monitor wells had been installed and data would be forwarded to him in the next few days. Permit 9-R, ANR Record Item #21. On April 25, 1997, Ms. Sprague prepared findings concerning her hydrogeologic investigations of Lot #8. These were received at ANR on April 29, 1997. She described the purpose of her work as follows: The purpose of this investigation was to determine if there is a likely hydraulic connection between the proposed septic system on Lot #8, and two nearby shallow dug wells, referred to as the Lynch and Lovett wells. Permit 9-R, ANR Record Item #23. Ms. Sprague reported that three groundwater monitoring wells (MW-1, MW-2, MW-3) had been installed on Lot #8 on April 11, 1997. She noted that there had been auger refusal encountered in MW-1 at a depth of 9.5 feet and that a fourth boring (SB-4) had been made approximately 6 feet from MW-1 to confirm the presence of an impeding layer at this location. In order to determine the elevation of groundwater in the vicinity, water level measurements were collected from the three monitoring wells, the Lovett well, and two groundwater seeps which were observed along the steep bank in the vicinity of the Lynch well. The water level in the Lynch well was estimated. Permit 9-R, ANR Record Item #23. Based on these measurements and soils analysis, Ms. Sprague concluded that "[g]roundwater flow from the proposed septic system for Lot #8, appears to flow between the Lynch and Lovett wells towards the Lovett's horse pasture," which is located to the northeast of the Lovetts' northeastern property line as shown on Figure 1. [of enclosed Subdivision plat]." She further observed that "there does not appear to be a direct hydraulic connection between the proposed septic system and the Lynch or Lovett well." Ms. Sprague further concluded that Given that the Lovett and Lynch wells each serve a single family home and, based on the results of this investigation, groundwater flow appears to be to the east-southeast, the well shields originally delineated by Wheeler Engineeringappear to be reasonable. The actual recharge areas to these wells likely extends in a topographically upgradient direction to the top of the slope. Permit 9-R, ANR Record Item #23. On May 5, 1997, the Appellants' hydrogeologist, Stephen Revell, spoke by phone with Mr. Zabiloski about what Mr. Revell believed to be inadequacies in Ms. Sprague's study. Mr. Revelle complained that there was no monitoring well for groundwater measurements between the proposed leachfield for Lot #8 and the Lynch well, and that using seep data and comparing it to water levels in springs was not a substitute for using a monitor well to make the requisite evaluation. Permit 9-R, ANR Record Items #37 and 38. On May 12, 1997, Ms. Sprague filed with the ANR a groundwater contour map, showing the original well shield delineated by Wheeler Engineering, as well as the groundwater flow lines for the proposed septic system on Lot #8. Permit 9-R, ANR Record Item #26. On May 13, 1997, Wheeler Engineering filed with the ANR additional site plan sheets for the Subdivision and a table showing ledge at 10.11 feet below the ground surface of MW-1 and 25.05 feet below the ground surface of MW-2. Permit 9-R, ANR Record Item #27. On May 19, 1997, Mr. Zabiloski talked to Ms. Sprague by phone and confirmed that she was using seep observations as indicators of groundwater elevations. Permit 9-R, ANR Record Item #39. On May 21, 1997, Mr. Zabiloski spoke with Barbara Lynch by phone, indicating that he would be issuing a permit based on the hydrogeologic study prepared by the applicant. Ms. Lynch expressed her concern that a fourth monitoring well should have been drilled. Mr Zabiloski reportedly informed Ms. Lynch that he had told her consultant that he was using seep observations as an indicator of groundwater elevations. Permit 9-R, ANR Record Item #39. On May 23, 1997, ANR issued Permit EC-4-0633-9 and a Notice of Permit Recording. However, this permit incorrectly identified the Subdivision as being located in the Town of Huntington, Vermont. Permit 9-R, ANR Record Item #28. On May 28, 1997, ANR issued a corrected permit, Permit EC-4-0633-9-R, and a Notice of Permit Recording, this time correctly identifying the town of location as Richmond, Vermont. Permit 9-R, ANR Record Item #29. On March 17, 1998, Dr. Paquette filed an application for an amendment to Permit 9-R, dated March 11, 1998. Permit 10, ANR Record Item #1. On March 30, 1998, ANR sent an acknowledgment letter to the applicant. Permit 10, ANR Record Items #3 and 4. On April 13, 1998, Sheila McIntyre, on behalf of herself, her husband and the Lovetts, wrote to Mr. Zabiloski requesting that a permit not be issued until the end of the day, April 16, 1998, to allow their hydrogeologist, Stephen Revell, an opportunity to file information regarding the application. Permit 10, ANR Record Item #8. On April 15 or 16, 1998, Stephen Revell filed with the ANR a letter with enclosures, setting forth various objections to the issuance of a revised subdivision permit for Lot #8. On April 15, 1998, Mr. Zabiloski spoke with Stephen Revell, telling him that a permit had issued and that the information supplied by Mr. Revell would not change the ANR's decision unless original information supplied by the applicant was fraudulent. Mr. Zabiloski advised Mr. Revell that his clients could pursue the appeal process. Permit 9-R, ANR Record Item #39. On April 16, 1998, ANR issued Permit EC-4-0633-10. A Notice of Permit Recording, although undated, appears to have been issued on the same date. Permit 10, ANR Record Items #9 and 10. On May 14, 1998, the Appellants filed a timely notice of appeal with the Board. C. Statement of the Arguments The Appellants seek Board review of the ANR's decisions to issue Permits 9-R and 10 on the basis that these permits were issued without the ANR requiring adequate hydrogeologic studies to ensure protection of their two existing water supplies. They argue that, for a minimal cost, the Permittee could have been required to conduct the necessary studies to prove conclu-sively that the proposed septic system would not contaminate their water supplies. However, because the ANR did not require these studies -- namely, the installation of another monitoring well between the septic system proposed for Lot #8 and their respective water supplies and the collection and analysis of data therefrom -- they argue that the issuance of Permits 9-R and 10 has effectively shifted the burden to them to continually test their water supplies to measure for possible contamination, and, if necessary, take any remediative measures. Applying the standard of review set forth in Procedural Rule 30(D), the Appellants argue that William Zabilowski, the Assistant Regional Engineer who reviewed the two permit applications, improperly issued Permits 9-R and 10 because the evidence in the ANR's files did not fairly and reasonably support the conclusion that the proposed septic system on Lot #8 would not contaminate the water supplies on the Appellants' properties. Notice of Appeal and Appellants' Proposed Findings of Fact, Conclusions of Law, and Order at 1. The Board understands the Appellants' concerns and arguments, but believes that the issues on appeal must be resolved in light of the language of the applicable law. The central question before the Board is whether the ANR erroneously interpreted the EPRs by not requiring the Permittee to file a hydrogeologic study to determine if there is a connection between the proposed septic systems on Lots #8 and 19 and the two downgradient shallow water supplies. If the EPRs, including Appendix 1-7-D (General Criteria Isolation Distances (b)), do not require that such studies be conducted, the Board must determine whether the rules give ANR staff the discretion to request hydrologic data and analysis. If the ANR did not erroneously interpret the EPRs in concluding that hydrogeologic studies were not required, then the Board must uphold the ANR's interpretation of the law. Procedural Rule 30(D). Likewise, if the EPRs give the ANR staff discretion to determine whether a hydrogeologic study should be required in a given case and furthermore the discretion to determine what data or analysis should be contained in such a study, the Board might reach the conclusion, based upon a review of the ANR's own records, that either the ANR's factual conclusions were fairly and reasonably supported by the evidence available to and presented to its staff, or they were not. Procedural Rule 30(D). The ANR asserts that the EPRs do not mandate that a hydrogeologic study must be submitted prior to issuance of a subdivision permit for a project that meets the minimum separation zone in accordance with the EPRs. This is because, in the ANR's view, the EPR's do not require a "conclusive" determination of whether there is a hydrogeologic connection between a proposed septic system and a water source prior to the issuance of a permit. The sole criteria for issuing a permit is whether the leachfield is beyond the Presumptive Minimum Separation Zone calculated in accordance with the VWSRs. If the proposed leachfield is outside the Presumptive Minimum Separation Zone, the ANR can issue the permit. ANR's Memoran-dum in Response to Appellants' Proposed Findings of Fact, Conclusions of Law and Order at 1-2. The ANR acknowledges that under certain circumstances the Minimum Separation Zone may be increased beyond the presumptive level and, although not required by the EPRs, hydrologic data and analysis may be requested by ANR staff to determine whether such an increase is warranted. However, the ANR argues that such requests are based on a case-by-case basis based on the technical judgments of its staff. Accordingly, the ANR urges the Board to defer to such judgments. ANR's Memorandum in Response to Appellants' Proposed Findings of Fact, Conclusions of Law and Order at 3-4. The Permittee concurs with the ANR's interpretation of the EPRs that the rules do not require the applicant to provide conclusive evidence that a proposed wastewater system will not contaminate neighboring water supplies prior to the issuance of a permit. Permittee's Objections to and Memorandum in Response to Appellants' Proposed Findings of Fact, Conclusions of Law, and Order at 1-2. The Permittee, however, argues that ANR staff exceed their authority when they request hydrogeologic studies not required by the EPRs. Permittee's Objections to and Memorandum in Response to Appellants' Proposed Findings of Fact, Conclusions of Law, and Order at 5. D. Discussion of the Applicable Law The EPRs are adopted to implement the requirements of 3 V.S.A. 2873(a) and (c) and 10 V.S.A. ch. 47, the Water Pollution Control statute. The purpose of the EPRs is set forth in  1-101 of the rules. This section states in part: B. The purpose of these rules is to prevent health hazards, unsanitary conditions, and groundwater or surface water pollution caused by improper subdivision of land, construction and operation of campgrounds, mobile home parks and public buildings; or from water supplies or treatment and disposal of sewage from sources within the jurisdiction of these rules. These rules are intended to: 1) prevent the creation of health hazards; 2) prevent surfacing sewage or the pollution or contamination of drinking water supplies, groundwater and surface water; 3) insure the availability of an adequate supply of potable water; 4) insure the provision of adequate drainage as related to the proper functioning of sewage disposal or water supply systems; and 5) insure that facilities are designed and constructed in a manner which will promote sanitary and healthful conditions during operation and maintenance. The EPRs set forth an application process and certain environmental requirements for subdivision approval. Applicants are required to retain qualified consultants to prepare and submit to the ANR site plans and specifications as well as any applicable soil data and site evaluation information as part of the application process. EPR,  1-307 and 1-707. The environmental requirements are set forth in EPR,  1-308. That section states in relevant part: A. Water Supply .... If service to each lot by a public community water supply is not proposed, the water system shall meet the requirement of Chapter 21 of the Environmental Protection Rules, the Vermont Water Supply Rule. B. Sewage Disposal The [Wastewater Management] Division [of the ANR] shall not grant a subdivision permit unless it is satisfied that if the proposed plans are followed, the sewage and drainage from the subdivision will be safely and effectively disposed of through lawful and proper means. It is recommended that, whenever feasible, the sewage and drainage of every lot in a subdivision shall be disposed of by means of a public sewage and drainage system approved by the Department of Environmental Conservation in accordance with 10 V.S.A., Chapter 47. If use of a public sewerage system is not proposed, the following criteria shall be used by the Division to determine the suitability of the subdivision lands for the disposal of sewage. 1) Minimum Required Area Each lot shall contain a minimum required area of suitable soil sufficient for building sites, and for present and future sewage disposal use in a location that will be isolated properly from streams, storm drains, lakes, wells, property lines, embankments, driveways, parking areas and other features which may adversely influence the operation and maintenance of an individual sewage disposal system, or create a condition of hazard to the public health or cause pollution of ground or surface waters. The minimum required area of each lot shall be sufficient to permit the safe and effective use of a subsurface disposal system sited and designed in accord with the criteria outlined in Subchapter 1-7. .... EPR, Section 1-308(B) then sets forth minimum required areas for each lot and elevation limitations. Appendix 1-7-D of the EPRs does not require that a hydrogeologic study be conducted nor does it set forth what methodology, if any, should be used to determine on a case-by-case basis the necessary isolation distance between a proposed wastewater system and a potable water supply. Instead, it sets forth a minimum horizontal isolation distance between a shallow well or spring serving as a drinking water supply source and the proposed septic tank of 75 feet. Appendix 1-7-D states that a horizontal isolation distance between such a water supply and a disposal field (leachfield) shall be determined by the methods in the VWSRs, Appendix 21-A, Part 11, 11.4. The VWSR  11.4 sets forth isolation and separation distances. Section 11.4.1.0 requires the establishment of A separation zone around the water source which defines the probable area of groundwater recharge to the water source. The separation zone may be established by a presumptive method which uses ground surface topography and minimum distances. (Emphasis added.) This section implicitly recognizes that conclusively establishing whether a hydrogeologic connection exists is at best a difficult and costly task. Accordingly, the VWSRs set forth a methodology for calculating presumptive minimum separation zones. Section 11.4.1.2, Presumptive Minimum Separation Zone Methods for a Shallow Water Sources, requires the applicant's consultant to draw a circle with a radius equal to the required minimum separation distance, in this case 150 feet, around the well head or water source and do one of the following: (1) if the circle drawn intersects with the contour elevation of the source, then draw lines beginning at these intersections, extending upslope and perpendicular to the contours, until these lines intersect an arc with a radius equal to 500 feet from the source. If necessary, to provide closure of the area draw an arc with radius of 500 feet from the source; or (2) if the circles drawn in Step 1 is in all cases at a lower elevation than the source elevation, no further delineation may be required (resulting in the smallest possible minimum separation zone of a circle with radius X); or (3) if the circle drawn in Step 1 is in all cases above the elevation of the well, the water shed area or a circle with a radius of 500 feet, whichever is smaller, shall represent the minimum separation zone (resulting in the largest possible minimum separation zone of a circle with a radius of 500 feet.) Applying the methodology set forth in 11.4.1.2, calculations were made using option 1 above. Because the circle drawn by the applicant's consultant intersected with the contour elevation of the source, as determined with a contoured site plan, the separation zone was extended upslope and perpendicular to the contours until the lines extended 500 feet from the well head. This upsloping of the zone, extending more than 500 feet from each of the Appellants' water supplies provided the presumptive protection for downgradient wells. See Permit 9-R, ANR Record Items #1 (Site Plans approved 5/22/97), #23 (Sprague Report), and #26 (Sprague groundwater contour map). Thus, the presumptive minimum separation zone for issuance of Permit 9-R was calculated and plotted. Since the proposed leachfield for Lot #8 was beyond the Presumptive Minimum Separation Zone, under the EPRs the ANR could issue a subdivision permit without hydrogeologic studies or other data. Nevertheless, the ANR concedes that under certain circumstances, the Minimum Presumptive Separation Zone may be increased beyond a presumptive level. Section 11.4.2.0.1 of the VWSRs states: These distances may be increased up to a maximum of 500 feet if a sewage disposal field is discharging upgradient of a water source and to the same unconsolidated, unconfined aquifer from which the water source is withdrawing. Although neither the EPRs nor the VWSRs specifically require that a hydrogeologic study be conducted to determine whether a given upgradient disposal field will discharge into the same groundwater source as that supplying a shallow well or spring, this rule suggests that ANR staff may request additional hydrogeologic information from an applicant if, in the judgment of that staff person, such information will help determine whether something more than the Presumptive Minimum Separation Zone is required at a given site. However, neither this rule nor any other in the EPRs or VWSRs specify exactly what information or analysis must be supplied by the applicant's consultant. Instead, the ANR argues that its staff must apply its technical expertise to the facts and circumstances of the case to determine what might be "a reasonable" request. Indeed, in the present case, Mr. Zabiloski requested such information. Permit 9-R, ANR Record Item #18. Ms. Sprague complied by filing the results of her hydrogeologic analysis. Permit 9-R, ANR Record Item #23. Based on his technical expertise and experience with reviewing such permit applications, Mr. Zabiloski determined that Ms. Sprague's monitoring well data in conjunction with her seep observations was sufficient to demonstrate that in all probability the direction of groundwater flow and the well shields located by Wheeler Engineering were adequate to protect the Appellants' respective water supplies. Even the Appellants' hydrogeologist, Mr. Revell, apparently communicated to Mr. Zabiloski that the Lovett water supply was properly isolated and that the Lynch spring would probably not be affected although the Sprague analysis failed to "fulfill the obligations of the rules, presumably because no monitoring well was located between the proposed septic system on Lot #8 and the Lynch spring . See Permit 9-R, ANR Record Item #38. The Board therefore determines that (1) the EPRs and related VWSRs did not require that a hydrogeologic study be performed; (2) it was within Mr. Zabiloski's discretion to require additional hydrologic information in light of the concerns raised by the Appellants' about potential contamination of their downgradient water supplies; and (3) it was reasonable for Mr. Zabiloski to conclude, based on all of the information in the record, that the Minimum Presumptive Isolation Zones between the proposed septic system on Lot #8 and the Appellants' two water supplies were sufficient to allow issuance of Permit 9-R. Moreover, having reached this conclusion with respect to Permit 9-R, Mr. Zabiloski was not required to revisit the issue in his review of the minor change with respect to Lot #19 proposed in the application for Permit 10. Accordingly, the Board concludes that the ANR did not erroneously interpret and apply the EPRs in not requiring the Permittee to file a hydrogeologic study to determine if there is a connection between the proposed septic systems in the Subdivision and the two down-gradient shallow water supplies owned by the Appellants, prior to the issuance of Permits 9-R and 10. IV. ORDER For the foregoing reasons, the Board affirms the decisions of the ANR issuing Permits 9-R and 10. Subject to the right of the parties to file a motion to alter or an appeal from this decision, jurisdiction is returned to the ANR. Dated at Montpelier, Vermont, this 28th day of October, 1998. WATER RESOURCES BOARD \s\ William Boyd Davies William Boyd Davies Chair Concurring: Ruth Einstein Gail Osherenko Jane Potvin f:\users\tinab\tina\mcintyre\orders\dec