15 Bull Moose Road Wastewater Permit Appeal - Decision on Merits ( 2024 )

VERMONT SUPERIOR COURT
Environmental Division Docket No. 23-ENV-00007
32 Cherry St, 2nd Floor, Suite 303,
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org
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In re: 15 Bull Moose 1 Wastewater & │
Water Supply Permit Appeal │
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DECISION ON THE MERITS
Alexis Maizel (“Applicant”) owns about 76 acres that are located at the
junction of Bull Moose Road and Mud City Loop in the Town of Morristown,
Vermont. The portion of the property to the west of Bull Moose Road hosts a
pre-existing farm store for which Applicant now wishes to install a wastewater
treatment system. Applicant sought and received approval for an on-site
wastewater treatment system from the State of Vermont Agency of Natural
Resources (“ANR”), Department of Environmental Conservation(“DEC”). When
DEC issued its approval, with conditions, (Permit No. WW-5-9129), neighbor
Selina Rooney (“Appellant”) filed a timely appeal with this Court.
Applicant is represented in these proceedings by Attorney Brice Simon,
Esq. ANR participated in these proceedings and is represented by Attorney Kane
Smart, Esq. Appellant chose to represent herself in these proceedings.
The Court afforded the parties some time to investigate a voluntary
resolution of their legal disputes. When those efforts did not prove successful,
the Court set the matter for a one-day trial, through the use of the WebEx remote
video conferencing system. The trial was completed that same day (December
1 This caption name appears to be taken from Applicant’s WW & WS Permit Application, a copy of
which was admitted at trial as Applicant’s Exhibit E. However, a review of the application suggests that
this address references Applicant’s nearby home address; her home appears to be located on the easterly
side of Bull Moose Road, near its junction with Mud City Loop. Both the proposed wastewater treatment
system, as well as the farm store it is planned to serve, is located on a portion of Applicant’s property to the
west of Bull Moose Road, on the southerly side of Mud City Loop. We maintain this caption name to align
with the name provided in the application and Permit.
19, 2023). The parties then requested to have an opportunity to file post-trial
legal memoranda; the Court granted that request and this matter became ripe
for our consideration after January 29, 2024.
Based upon the credible testimony and other evidence presented at trial,
the Court renders the following Findings of Fact, Conclusions of Law, and the
Judgment Order which accompanies this Merits Decision.
FINDINGS OF FACT
1. Applicant owns a parcel of land containing about 76 acres that can be
identified as three sub-parcels along Mud City Loop in the Town of Morrisville.
Applicant’s property is partially depicted on her Exhibit D.
2. One parcel is located easterly of Bull Moose Road and on the southerly
side of Mud City Loop. This parcel contains Applicant’s primary residence.
3. A second sub-parcel is also located on the southerly side of Mud City Loop
and to the west of Bull Moose Road. This sub-parcel contains an existing farm
store that Applicant operates. It is on this sub-parcel that Applicant proposes
to install an on-site wastewater treatment system that will be used to support
the existing farm store.
4. The third sub-parcel is located on the northerly side of Mud City Loop,
across from Applicant’s two other sub-parcels. This third sub-parcel does not
contain any existing or proposed improvements.
5. At the time of the filing of her application, Applicant had operated her farm
store on the second sub-parcel for about two years. She has used the farm store
to sell goods and produce from her nearby farm.
6. The store is located near the northwestern corner of that second sub-
parcel, which abuts Mud City Loop to the north, Applicant’s third sub-parcel
across Mud City Loop, and property of her neighbor, Selina Rooney (“Appellant”)
to the west. A second neighbor (Mr. Bidwell) owns property to the north of Mud
City Loop, across from Ms. Rooney’s property.
7. Mr. Bidwell has not chosen to participate in this appeal.
8. Applicant and her engineer determined that, in their judgment, the
preferred location for her proposed on-site wastewater treatment system would
be near the northwesterly corner of the second sub-parcel. This location would
be near her existing farm store (for which it was planned to serve) and down-
slope of the store, so as to afford a gravity-driven feed of wastewater into the
proposed septic tank and leach field.
9. Applicant’s engineer arranged for test pits to be dug in the area designated
for the proposed system. The percolation tests employed in these test pits
provided evidence of satisfactory drainage from the test pits. 2
10. While there is a mapped wetland on Appellant Rooney’s property (with a
small portion located in the southwesterly corner of Applicant’s second sub-
parcel), the area where Applicant and her engineer propose to locate the
wastewater treatment system does not include any mapped wetlands. The
engineer’s investigation revealed that where the system is proposed, the soils are
very “stony” and include about a 6% slope. See Applicant’s Exhibit E. The
engineer installed and monitored percolation test pits in the proposed system
location, to confirm the appropriateness of the area soils.
11. While DEC was reviewing Applicant’s permit application, Appellant chose
not to express any concerns to DEC about possible impact upon area wetlands
or hydraulic soils. There was no credible evidence presented at trial that
Applicant’s proposed wastewater treatment system will have any measurable
adverse impacts upon area wetlands or hydraulic soils.
12. The proposed wastewater treatment system, including the septic tank,
leach field, and piping will all be wholly located on Applicant’s second sub-parcel,
and will respect all applicable zoning regulations, including setback restrictions.
13. Applicant’s engineer credibly testified that the design and location of the
proposed system complies with applicable DEC regulations and assures
adequate treatment of wastewater as it migrates into the groundwater.
14. Applicant’s expert also credibly testified that his observations from
Applicant’s property and from the adjoining roadways did not reveal any
2
The location of the three test pits are shown on Applicant’s Exhibit D. Such test pits
and percolation samples are used to determine whether the soils in which the test pits are dug
will provide drainage of water from the soils sufficient to support the proposed wastewater
treatment system.
improvements on the neighbors’ properties that could be affected by Applicant’s
proposed wastewater treatment system.
15. Applicant’s engineer designed the system to employ a “Presby septic
system” as part of a “mound system.” A mound system usually requires the
importation and mounding of new soils above the proposed leach field. A Presby
system is thought to improve the processing of wastewater through the use of
piping in the leach field that retains solids and treats the effluent with bacteria
before it is discharged into the nearby soils.
16. Applicant has an existing drilled water well that serves her home on sub-
parcel one. She proposes to install underground piping and use her existing
home well to supply potable water to her farm store.
17. Based upon these recommendations, Applicant completed an application
for a wastewater system and potable water supply permit.
18. Pursuant to the applicable DEC regulations, Applicant provided the
owners of adjoining properties with notice of her intent to submit an application
for her proposed wastewater treatment and potable water supply systems,
including neighbors Appellant Rooney and Mr. Bidwell. The notice that
Applicant provided to her neighbors was introduced as Exhibit B.
19. Applicant’s notification to her neighbors advised that, pursuant to DEC
regulations, she include a photocopy of the site plan depicting Applicant’s
proposed wastewater treatment system. The photocopy of Applicant’s site plan
was reduced in size so as to be easily included in the mailing to her neighbors.
A copy of that site plan was admitted at trial as Exhibit C.
20. The DEC regulations require that an applicant’s site plan depict a
“presumptive isolation zone” around a proposed wastewater treatment system.
Applicant’s proposed wastewater treatment system and the presumptive
isolation zone imposed by DEC regulations are depicted on Exhibit D. As noted
on Exhibit D, the presumptive isolation zone extends partially onto neighbors
Rooney and Bidwell’s properties. 3 The portion of the presumptive isolation zone
3 Exhibit D only shows a presumptive isolation zone around Applicant’s proposed
wastewater treatment system, since her source for potable water for the farm store will come
from an existing well already serving her nearby residence to the east of Bull Moose Road.
that is on Appellant’s property is outlined with an orange highlighter; the portion
on Mr. Bidwell’s property is outlined with a red highlighter, all as depicted on
Exhibit D.
21. The purpose of the presumptive isolation zone, as stated by DEC’s
Drinking Water and Groundwater Protection Division (“DWGWPD”) regulations,
are to “protect human health by preventing contamination” of a drinking water
source. See Exhibit B at 1. While DWGWPD initially recommends that a
drinking water well “should not be located “within a presumptive isolation zone,”
affected neighbors may request that DEC provide a more specific determination
of the actual isolation zone necessary to protect public health. In essence, a
presumptive isolation zone is a preventative measure.
22. Appellant chose not to request that DEC calculate the portion of an actual
isolation zone that incumbers her property. An actual isolation zone calculation
would have determined, based upon soil investigations, what portion, if any, of
the isolation zone would encumber Appellant Rooney’s property. Since
Applicant’s neighbor did not make such a request, no such calculation was
made.
23. The applicable DEC regulations also require neighbors receiving notice of
a pending application to advise whether they have a water supply or wastewater
disposal system on their neighboring properties that may be impacted by the
proposed wastewater system or the presumptive isolation zone imposed by DEC
regulations.
24. Appellant Rooney did not provide notice of any existing water supply or
wastewater system on her property that may be impacted by Applicant’s
proposed wastewater system or the presumptive isolation zone imposed by DEC
regulations.
25. At trial, Appellant asserted that a water supply well was located on her
property within the presumptive isolation zone. This well once served a building
that has since been removed from her property. Ms. Rooney also asserted that
this old spring has been used as a source of water for cows that grazed on her
property. There was no credible evidence presented at trial that an operating
spring well now existed on Appellant’s property that was within the presumptive
isolation zone.
26. At trial, Appellant expressed concerns that untreated or inadequately
treated wastewater from Applicant’s proposed wastewater treatment system
would travel with groundwater onto her property. However, there was no
credible evidence presented at trial that untreated or inadequately treated
wastewater from Applicant’s proposed wastewater treatment system would
actually travel onto Appellant’s property.
27. DEC did not visit the site of Applicant’s proposed wastewater treatment
system and did not require the system site to be flagged.
28. Once Applicant presented her application to DEC and provided notice to
her neighbors, DEC granted Applicant wastewater system and potable water
supply permit No. WW-5-9129 on November 8, 2021. Appellant filed a timely
notice of appeal from that permit with this Court.
Conclusions of Law
Appeals from DEC determinations on applications for wastewater and
potable water supply system permits are made to this Court and considered on
a de novo basis. In re Musto Wastewater System, 2014 VT 103, ¶ 3, 197 Vt. 514.
. In order to present legal issues for our consideration in such appeals, an
appellant must file a statement of questions. V.R.E.C.P. 5(f). In this appeal,
Appellant filed her Statement of Questions on April 10, 2023. Appellant’s
Statement of Questions contains 20 Questions, with sub-questions and detailed
over six pages. During trial, the Court afforded each party the opportunity to
review each of Appellant’s Questions. Due to their length, we have summarized
below the legal issues presented in each Question.
Question 1: Appellant asserts that Applicant’s site map is not drawn to scale.
At trial, it became clear that Applicant’s site map was actually drawn to scale.
Appellant’s confusion arose because the engineer provided a reduced photocopy
of the site map in his mailing to Appellant. The actual scale on this photocopy
accurately depicts the distances on the site map. The scale is only deceptive
when one attempts to only employ the written scale 1” = 60’ to the reduced
photocopy. We conclude that the photocopy provided to Appellant accurately
depicts Applicant’s site plan.
Question 2: Appellant’s Question 2 asks why does Applicant’s site plan not
depict the alleged potable water spring on Appellant’s property, within the
isolation zone. There is no dispute that Applicant’s site plan does not identify
an alleged spring well on Appellant’s property within the presumptive isolation
zone. See Exhibits C-1 and C-2. It became clear at trial that the reason why no
such spring well is identified on Applicant’s property is because no such spring
well was discernable from the engineer’s off-site inspection of the area, and that
Appellant failed to disclose that such a spring well was located within the
presumptive isolation zone on her property, as required by DEC regulations,
when she received notice of the pending application. It was only at trial that
Appellant asserted that such a spring well existed. The credible evidence
presented at trial was that while a spring well may have once existed on her
property, that spring well either no longer exists or is not discernable by a site
inspection. In any event, Appellant failed to comply with DEC regulations that
required her to specifically identify any claimed water sources within the
presumptive isolation zone. In response to Appellant’s Question 2, we conclude
that these circumstances do not require a denial of Applicant’s wastewater
permit application.
Question 3: Appellant asserts that the proposed wastewater treatment system
“was put in the wettest area of the” adjoining fields and that for this reason, the
pending application should be denied. The credible evidence presented at trial
belied these assertions. In fact, the wetland that Appellant references is mostly
on her property, not Applicants, and is nowhere near the proposed wastewater
system site or the presumptive isolation zone identified on either Appellant’s or
Applicant’s property. Applicant’s expert credibly testified that the soils on and
around the system site are not hydric and do not evidence a presence within a
wetland. See Applicant Exhibit E.
In fact, Applicant’s expert credibly reported that at the proposed site, there
is at least sixteen inches of soils before the evidenced seasonal high water table,
and that both the mound system and the proposed Presby system will provide
adequate filtration and treatment for the wastewater that would enter the
proposed system. The details for the proposed system are provided on Applicant
Exhibits C-1 and C-2.
The expert also credibly noted that if Appellant had concerns about the
presence of a possible wetland or a wetland buffer, she could have contacted
ANR’s wetlands experts to determine whether a wetland reclassification was
warranted. Appellant failed to assert that claim and no wetland reclassification
has occurred.
For all these reasons, we conclude that Appellant has not presented a
basis for denying the pending application in this Question 3.
Question 4: Appellant asserts in her Question 4 that the pending application
should be denied because Applicant has not received a Vermont Agency of
Agriculture RAP designation for her farm. We conclude that this Question is
beyond the scope of our limited jurisdiction in this appeal of a wastewater permit
determination and therefore decline to address it here.
Question 5: By this Question, Appellant challenges the constitutionality of the
DEC imposition of a presumptive isolation zone on a neighbor’s property,
“thereby limiting what [the neighbor] can do on their property in the future . . .
[and] unfairly . . . restrict[ing] the potential use of Appellant’s property [and
whether] this permit affect[s] Appellant’s property rights or impermissibly
encumber Appellant’s property?” Appellant’s Statement of Questions, filed April
10, 2023, at p. 2.
Appellant’s fears are mostly misplaced. The applicable DEC regulations
limit only a small fraction of her rights to use and develop her property that lies
within the presumptive isolation zone: that is, the only limitation is upon the
right to locate a new potable water supply source within the presumptive zone.
See Applicant’s Exhibit B(noting that the “presumptive isolation zone” around a
proposed wastewater system established by DWGPD regulations merely requires
that “a well should not be located” within the zone, “to protect human health by
preventing contamination of a well.”). There are no other property rights
restrictions within the DWGPD regulations within a presumptive isolation zone.
As noted above, a neighbor may request a more specific determination of
an actual isolation zone and request a further limitation or variance upon the
new well location restriction. Appellant chose to not pursue these alternatives.
The constitutionality of placing presumptive isolation zones on a
neighbor’s property have been the subject of several appeals to this Court, and
we can understand why, since at first blush, the regulations appear to restrict a
neighbor’s use of their property. But our Supreme Court has recently addressed
such constitutional challenges in In re DJK, LLC WW & WS Permit Appeal, 2024
VT 34. As in the case at bar, neighbors in the DJK appeal (the Crowleys)
challenged a wastewater permit provided to an applicant that identified a
“presumptive isolation zone” that encroached onto the Crowleys’ property. The
Court concluded that the isolation zone established by DWGPD regulations
merely limited the Crowleys’ ability to locate a new water well within the zone,
and further noted that the applicable regulations allowed for affected neighbors,
such as the Crowleys, to petition for a reduction in the isolation zone or an
exemption from the water well restriction. Id. at ¶ 4. As here, the Crowleys
chose neither of those alternative courses.
In essence, the DJK court concluded that the only restriction created by
the applicable DWGPD regulations is upon an unrestricted access to
groundwater. Id. at 36-37. The Court repeated the conclusion of this Court that
access to groundwater is not recognized as an individual right, but rather as a
right held in trust for the general public and managed for all Vermonters. Id. In
conclusion, the DJK Court rejected the Crowley’s constitutional claims and
concluded that there had been “no taking” as a consequence of the applicable
DEC regulations.
Much like in the DJK appeal, we reject Appellant’s constitutional challenge
and conclude that there has been no impermissible taking by imposition of a
presumptive isolation zone on Appellant’s property. Appellant here chose not to
lessen the limited impacts upon her rights by requesting a calculation of the
actual isolation zone and failed to show how the zone’s implementation would
limit the actual use and enjoyment of her property. For all these reasons, we
conclude that we must answer Appellant’s Question 5 in the negative.
Question 6: By her question 6, Appellant appears to assert that she enjoys a
“prescriptive easement” across Applicant’s property and that such easement
should prohibit DEC from granting the pending application. Applicant chose not
to identify this alleged prescriptive easement in response to the Notice provided
to her (Exhibit B), and Appellant’s testimony at trial was not compelling. In fact,
at one point during her testimony, Appellant Rooney stated that the prescriptive
easement issue she was asserting “is now a moot point.”
There was no evidence at trial that Appellant has presented her claim of a
prescriptive easement to a court of competent jurisdiction. More importantly,
the limited jurisdiction we enjoy in this appeal from a wastewater permit
determination does not allow this court to adjudicate private property rights. We
decline to do so here. For all these reasons, we decline Appellant’s suggestion
that the pending application should be denied for these reasons.
Question 7: Appellant questions here whether the pending application must be
denied because Applicant was not required to “flag” the perimeter of the proposed
mound system or to maintain the flagging during the pendency of the
application. Appellant misconstrues the directives of the DWGPD regulations.
Applicant’s expert credibly testified that DEC officials did not request or direct
that he flag the proposed system and did not object when he did not do so.
Similarly, even though the DWGPD regulations authorize DEC officials to inspect
and enter onto a system site, no DEC officials chose to do so. We find no
provisions in the DWGPD regulations that require that a permit denial is a
necessary consequence of these omissions. In fact, during her trial testimony,
Appellant stated that Applicant’s engineer had adequately “answer[ed] that
question.” We therefore answer Appellant’s Question 7 in the negative.
Question 8: Appellant asks by this Question whether the wastewater permit
“impermissibly authorize[s] use of or trespass onto Appellant’s property?” No
rational interpretation of the issued permit or the DEC regulations under which
the permit was issued can support such an assertion. There is no provision in
the permit that authorizes a physical entrance onto Appellant’s property. There
was no evidence presented at trial that Applicant or her expert ever actually
entered onto Appellant’s property, nor any evidence that they attempted to do
so.
Appellant appeared to suggest that the imposition of a presumptive
isolation zone on her property constitutes a “trespass” upon her property. And
yet, Appellant offered no statute or caselaw interpretation to support this claim.
The DJK Court responded to a similar claim by noting that Vermont has adhered
to the “first in time” approach of authorizing a permit to an applicant who first
applies for a wastewater or potable water supply permit. DJK, 2024 VT 34 at
¶ 5:
See "A Review of the 'Overshadowing' of Water Supply-Wastewater
System Isolation Distances," Report of the Technical Advisory
Committee to the Vermont Legislature, at 1, 47-50, App. 8.4 (Jan.
15, 2010) [hereinafter TAC Report] (recognizing that Vermont, like
most New England states, uses first-in-time approach to
wastewater system and potable water supply permitting when first
permit approves isolation zone overshadowing one or
more neighboring properties),
https://dee.vermont.gov/sites/dee/files/dwgwp/rotac/pdf/2011.0
1.15.tacovershadowingrep.pdf [https://penna.cc/5EFQ-4XBE].
This "approach has been used since the Agency of Natural
Resources began issuing permits for water and wastewater systems
starting in 1969." Id. at 1. At the request of the Legislature, the
Technical Advisory Committee "examined alternative
approaches," and "[a]fter considering the effect of these approaches,"
it "strongly recommend[ed] retaining the first-in-time approach." Id.
As with the case at bar, the neighbors’ property in DJK was undeveloped
at the time the wastewater application was filed.
Furthermore, Appellant here failed to identify a property interest that was
encroached upon by the proposed presumptive isolation zone. The only
restriction imposed upon Appellant is a presumptive restriction upon installing
a new well to withdraw groundwater, a restriction that can be reduced or
eliminated, if Appellant had chosen to make such a request. As is true here, the
neighbor was advised by the DJK Court that they could “’construct houses,
garages, and driveways within the presumptive isolation zone’ and that ‘[neither
the legislature nor the Rules authorize or require the [DEC] to deny a permit
application when presumptive isolation zones extend onto [neighboring]
property.’” Id. at ¶ 7.
For all these reasons, we Answer Appellant’s Question 8 in the negative.
Question 9: By this Question, Appellant asked whether “the permit and isolation
zone deprive neighboring landowners of their property rights by creating an
unauthorized and unlawful easement, encroachment, or restrictive covenant?”
We find this Question to be one of the more fanciful assertions in Appellant’s
Statement of Questions; it is a fanciful assertion with no factual or legal
foundation offered at trial.
First, the only restriction provided by the permit is a presumption that
Appellant may not install a water well within the presumptive isolation zone; a
restriction that Appellant could have requested be reduced or eliminated. But
Appellant chose not to file such a request.
Second, we must note, and the DJK Court highlighted similar conclusions
by the lower court there, that the groundwater resources within Vermont do not
constitute a private property right, but rather a right “held in trust for the
public.” See, 10 V.S.A. § 1390. A restriction on the ability to extract
groundwater within the presumptive isolation zone does not prohibit, interfere,
or deprive them of all economic use of their property.
For all these reasons, we must answer Appellant’s Question 9 in the
negative.
Question 10: Appellant asks by this Question whether “the permit and resulting
isolation zone impermissibly lower the land values of the affected neighbor’s
land?” There was no evidence presented of such an impact, and such evidence
was not allowed at trial because such a question was well beyond the
jurisdictional authority of this Court in an appeal of a wastewater permit
determination. We therefore decline to address this Question, since it is beyond
the scope of our limited jurisdiction here.
Question 11: By this Question, Appellant asserted that it is “unlawful” for DEC
“to issue a permit that will deprive farmers of their property rights . . ..” We have
already addressed, and rejected, Appellant’s unfounded assertions that the
imposition of a presumptive isolation zone somehow deprives a neighbor of some
unspecified “property rights.” We need not repeat our analysis here. Appellant
chose not to offer any foundation at trial for her unsubstantiated assertion that
the DEC permitting process “disparately impact farmers by rendering a portion
of agricultural land unsuitable, and thereby directly harming their business.”
There is no provision in the applicable DEC regulations that renders agricultural
land unsuitable. For all these reasons, we answer Appellant’s Question 11 in
the negative.
Question 12: Appellant asks by her Question 12 whether the state-issued permit
“violate[s] article 9 of the Vermont Constitution. Ms. Rooney provided no
specificity in this Question, and chose to not offer any specificity at trial, either.
We are therefore left on our own and only with the evidence offered by Applicant
when we go about addressing this Question.
Article 9 of the Vermont Constitution reads, in broadly relevant part, as
follows:
That every member of society hath a right to be protected in the
enjoyment of life, liberty, and property, and therefore is bound to
contribute the member’s proportion towards the expen[se] of that
protection, and yield personal service, when necessary, or an
equivalent thereto, but no part of any person’s property can be justly
taken, or applied to public uses, without the person’s own consent,
or that of the Representative Body, . . ..
Vt. Const. Art. 9
We assume that Appellant decided to cite to Article 9 because of its
protection that “no part of any person’s property can be justly taken, or applied
to public uses, without the person’s own consent, . . ..”
Because of our prior analysis that Appellant has not been deprived of a
property right by operation of the permit issued to Applicant, we conclude that
there has been no violation of the rights protected by Article 9 of the Vermont
Constitution. We therefore answer Appellant’s Question 12 in the negative.
Question 13: Appellant asserts that the DEC-issued permit violates the 14th
amendment of the U. S. Constitution “by depriving Appellants [sic] of property
without due process of law” and “because the ANR adjudication violated the
Rooney’s [sic] procedural due process rights . . ., since the permit effectively
deprives the Rooney’s [sic] of property rights and their right to access water, and
because the Rooney’s [sic] were not given any opportunity to be heard prior to
the approval of the permit.”
The factual foundation for Appellant’s legal claims in this Question are
baseless and without merit, much like in several prior Questions. As we have
already determined, the issued permit does not deprive Appellant of property
rights and does not deprive Appellant of access to water from her property. At
trial, Appellant provided no credible evidence to support her claims.
The unchallenged and credible testimony and other evidence presented at
trial convinced this Court that the factual representations Appellant makes in
her Question 13 are patently false. Appellant was provided with written notice
as soon as Applicant submitted her application, as evidenced by the notice
admitted at trial as Exhibit B. This notice also advised how she could express
her concerns about Applicant’s proposed wastewater system, particularly
whether she has an existing water source that may be impacted that was not
identified on the materials that Applicant submitted. Appellant chose to not
respond to this notice. Appellant also could have expressed any concerns she
had about the proposed project to DEC as they began review of Applicant’s
application. These procedural due process rights were afforded to Appellant, but
she chose not to exercise any of them.
For all these reasons, we answer Appellant’s Question 13 in the negative.
Question 14: Appellant first asserts in Question 14 that “the permit . . .
constitute[s] an uncompensated and unlawful taking in violation of” the
applicable state and federal constitutions. We have already addressed these
constitutional claims in our analysis of Questions 5, 8, and 9, where we
specifically reviewed the Vermont Supreme Court DJK decision. The challenged
permit does not constitute an uncompensated or unlawful taking under any
interpretation of the applicable constitutional caselaw of which we are aware.
Appellant offered no legal analysis of her claims.
Appellant also asserts in her Question 14 that the permit should be
deemed “invalid due to false/misleading information on the application . . ..”
Appellant’s representation here are incorrect. The application contains no
substantiative misrepresentations; certainly no misrepresentations that would
require this Court to deny the pending application.
For all these reasons, we must respond to Appellant’s Question 14 in the
negative.
Question 15: Appellant asserts in her Question 15 that the permit must be
deemed invalid “because the innovative and alternative technology general use
approval permit for the Presby systems expired on 5-1-2023.” At trial,
Applicant’s engineer credibly presented testimony that this general permit had
been extended. Thereafter, Appellant represented that these claims “were now
moot” and we should disregard this challenge. We therefore answer Appellant’s
Question 15 in the negative.
Question 16: By her Question 16, Appellant asks whether “the permit and the
regulatory scheme that allows overshadowing violate multiple provisions of 10
V.S.A. Chapter 48 . . .” and then goes on to specifically reference 10 V.S.A.
§§ 1410 and § 1390. In support of her suggestion that there have been violations
of Chapter 48, Appellant asserts that “the permit and the resulting isolation zone
cuts off the Rooney’s [sic] ability access or use water from their overshadowed
land, thus unreasonably interfering with the Rooney’s [sic] ability to use, access,
and enjoy the groundwater.”
We do not get to an analysis of whether there have been violations of 10
V.S.A. Chapter 48 because Appellant failed to present any credible evidence that
her ability to access groundwater on her land will be restricted or interfered with
in any substantive way.
As noted above, the applicable regulations offered Appellant an
opportunity to request a determination of the actual isolation zone and to what
extent it actually encumbers her property. She chose not to request or explore
this. Further, those same regulations allow any affected neighbor to request an
exemption or variance from what is the only restriction, if any: to groundwater
within the actual isolation zone.
Given the absence of any credible evidence presented by Appellant, we are
left to wonder whether her access to groundwater will be encumbered at all, once
an actual isolation zone is established and when Appellant exhausts her efforts
to seek a variance or exemption.
Incredibly, in her Question 16, Appellant asserts that “the regulatory
scheme . . . prioritizes development while sacrificing the quality of the
groundwater . . . [and] forfeit[s] the protection of groundwater in order to promote
development . . ..” The credible trial evidence established quite the opposite.
ANR and its officials have done a commendable job of protecting Vermont’s
groundwater, especially reaffirming groundwater as a valuable asset to be
protected for all Vermonters. The rules establishing isolation distances around
water wells and septic systems are meant and actually do protect the
groundwater from contamination. The isolation zones operate as a preventative
measure, not an encouragement of development, so that Vermonters can be more
assured that their water sources can be safe and protected.
The last point that Appellant makes in her multi-paragraphed, multi-
paged Question 16 is her assertion that “the permit and the adjoining regulatory
scheme . . . [should] be invalidated since it creates a tragedy of the commons
that encourages people to excessively use and abuse the State’s groundwater
resources, thus contributing to further violations of 10 V.S.A. Chapter 48 . . ..”
The tragedy of the commons is a phrase often used in commentary that
compares common access to the ultimate loss of public resources. Here is one
definition of the term:
The tragedy of the commons is a metaphoric label for a
concept that is widely discussed, and criticised [sic], in economics,
ecology and other sciences. According to the concept, should many
people enjoy unfettered access to a finite, valuable resource such as
a pasture, they will tend to overuse it and may end up destroying its
value altogether. Even if some users exercised voluntary restraint,
the other users would merely supplant them, the predictable result
a tragedy for all.
The metaphor is the title of a 1968 essay by ecologist Garrett
Hardin. As another example, he cited a watercourse which all are
free to pollute. The concept itself did not originate with Hardin, but
rather extends back to classical antiquity, being discussed
by Aristotle.
From the public encyclopedia Wikipedia, https://en.wikipedia.org/wiki
/Tragedy_of_the_commons.
The permit applied for here and the ANR regulations that led to its approval
represent public action to protect against the operation of the tragedy of the
commons in regard to Vermont groundwater. The applicable regulations protect
our groundwater from unfettered use and pollution. At trial, Appellant did not
offer any evidence to support her assertion here, and we are therefore left to
wonder about her accusation.
For all these reasons, we answer all the issues Appellant raises in her
Question 16 in the negative.
Question 17: By her Question 17, Appellant asks whether “the permit and the
resulting isolation zone violate the Vermont Groundwater Protection Rule[s] and
Strategy?” This is nothing more than a rehashing of Appellant’s prior assertions,
all of which we have rejected. The only additional point Appellant made on this
issue at trial was a baseless assertion that she believed the applicable
regulations “benefit more affluent people.”
All of Appellant’s assertions in this Question are unsupported assertions
that have no relevance to the legal issues presented by the pending application.
At trial, Appellant offered no further evidence in support of these assertions.
For all the reasons detailed above, we answer Appellant’s Question 17 in
the negative.
Question 18: By her Question 18, Appellant asserts that the applicable
wastewater regulations “violate 3 V. S. A. § 833(a) . . ..” That statutory provision
provides that “[r]ules and procedures shall be written in a clear and coherent
manner using words with common and everyday meanings, consistent with the
text of the rule or procedure.” Id.
Other than quoting this statutory language, Appellant provided no credible
explanation for how the applicable wastewater rules violate this statute. Having
received no evidence or explanation, we conclude that we must answer
Appellant’s Question 18 in the negative.
Question 19: By this Question, Appellant asked whether the permit issued by
DEC is “invalid because the agency and applicant failed to verify whether the
Rooney’s [sic] will be able to access water, whether they will be able to access
enough water to support their dairy and agricultural business, and whether they
will be able to access enough clean water in the future?”
Appellant does not provide any citation to a statute, rule, or caselaw that
creates a duty in an applicant to verify a neighbor’s access to groundwater. At
trial, Appellant simply stated her assertion in this Question was “clear and
straight forward” and that she didn’t have anything further to offer in support.
We find Appellant’s assertions here particularly ironic, given that the
applicable regulations obligated her to notify applicant of any pre-existing water
source that may be impacted by Applicant’s proposed wastewater system, and
authorized Appellant to request a calculation of the actual isolation zone, to see
if Appellant’s supposed water source is even impacted by Applicant’s proposed
wastewater system. Further, Appellant had the right under the applicable
regulations to request an exemption or variance from the limitations of locating
a new water source within that recalculated zone. Since Appellant chose not to
exercise those rights, we cannot conclude that Applicant’s proposed wastewater
system will impose any restraints upon Appellant’s access to groundwater within
an actual isolation zone.
We therefore conclude that the credible facts and applicable law require
us to answer Appellant’s Question 19 in the negative.
Question 20: As a final Question, Appellant asks whether “the permit and the
resulting isolation zone present a risk to the water quality of the nearby stream,
pond, and or wetland?? [sic] If so, will it violate the Vermont Water Quality
Standards?” A wetland, mostly on Appellant’s property, had been identified; a
nearby stream or pond had not been identified.
At trial, we awaited Appellant’s explanation and factual support for these
assertions. We received none from her. Instead, as with her response in regard
to our inquiry about her Question 19, Appellant stated that this Question was
“clear and straight forward” and that she didn’t have anything further to offer.
Based upon the evidence presented, we conclude that there is no support
for the accusations Appellant makes in her Question 20 and therefore answer
that Question in the negative.
We have reviewed all of Appellant’s twenty Questions, including the sub-
questions contained therein, and have answered each Question that Appellant
posed in the negative. Further, we conclude that Applicant has provided
sufficient credible evidence, such that we conclude that her application for a
wastewater and potable water supply permit must be APPROVED.
We therefore AFFIRM the DEC’s issuance to Applicant of Permit No. WW-
5-9129.
This completes the current proceedings before this Court concerning this
appeal. A Judgment Order accompanies this Merits Decision.
Electronically signed at Brattleboro, Vermont on Monday, July 1, 2024,
pursuant to V.R.E.F. 9(d).
Thomas S. Durkin, Superior Judge
Superior Court, Environmental Division