• Water: Public resource or private cache? Bill would make state's aquifers a public trust
     | February 24,2008

    MONTPELIER — East Montpelier residents reacted to a proposal for a water bottling plant in town by asking Town Meeting Day voters to approve a moratorium on the extraction of large volumes of groundwater.

    But citizens of this central Vermont town aren't the only ones who are worried about the protection of underground aquifers; lawmakers too have been spurred into action. They are considering a measure that would define who owns the state's groundwater and how it should be protected.

    Supporters of the tougher regulations in the bill now in the Senate Natural Resources Committee say Vermont is way behind other states on groundwater protection issues. The new legislation would bring the state in line with proposals that are already in place in New Hampshire and the West.

    If East Montpelier's moratorium is approved it would, supporters hope, protect the town's groundwater until the pending legislation becomes law.

    The proposal, which would harness a spring just over the town line in East Montpelier and pipe the water to a bottling plant near Gallison Hill in Montpelier, has a ways to go to clear state and local permitting hurdles.

    However, there is enough interest in town that supporters gathered the 200 signatures needed to get it on the ballot — and to bring a crowd to a recent meeting on the issue.

    Paul Erlbaum, an East Montpelier resident and an author of the moratorium, is advocating a wait-and-see approach to the water bottling plant proposal because the effect of removing that much water from the region hasn't been studied.

    He says that lawmakers' interest in the issue is another reason to "organize our collective thinking about our water."

    Tom Brazier, the project manager for the Montpelier Spring Water Co. proposal and the chairman of the town's selectboard, says he doesn't believe the moratorium will be binding since there are already state laws on the books that address groundwater use.

    Brazier says the same goes for the pending legislation. "Whoever is proposing this bill is not really looking at the laws. There are already all kinds of laws on the books to protect groundwater," he said. "The state will make sure that groundwater is protected."

    Erlbaum disagrees with Brazier. "It was certainly our intention that, if it passes, this resolution be binding," he said.


    Whatever happens in East Montpelier on Town Meeting Day, the larger question of how to regulate large users of groundwater in Vermont remains.

    The fundamental question is whether groundwater — water in subterranean aquifers — should be declared a "pubic trust" owned in common by all Vermonters — and for their use. That would mean water below ground would be explicitly classified as a shared resource like lakes, streams and rivers.

    An interim program for permitting large groundwater withdrawals was put in place last year. Before that Vermont lagged behind many states, including its neighbor to the East, in the limits it puts on withdrawals of groundwater, many knowledgeable about the issue say. Even with that new program Vermont is still behind most states, according to supporters of the legislation.

    "You don't have to look too far in New England to find better groundwater protection models. New Hampshire does define groundwater as a public trust resource," said Professor Patrick Parenteau of Vermont Law School and senior counsel of the Environmental and Natural Resources Law Clinic. "They have a far more comprehensive groundwater protection law."

    Vermont is probably at or below the middle of the pack among the Eastern states — and far behind the tough laws in the water-poor West, he added. Groundwater — connected as it is to surface water — may already been in the public trust legally, Parenteau said. But since it will take a lawsuit to decide that question it makes more sense to pass a law defining it that way now, he said.

    A public trust doctrine would also enable citizens to sue the state to force it to protect and regulate groundwater.

    Officials in the state's environmental agency don't support the bill.

    Warren Coleman, an attorney with the Agency of Natural Resources, says his agency's objection is not that the bill requires regulation of groundwater extraction, as that could likely be worked out. He says the public trust language is too vague.

    "It is unclear what it is ultimately designed to do or what purpose it serves," Coleman said.

    While he agrees that Vermont has lagged behind other states, he said the bill now under consideration goes farther than necessary.

    "I think we are catching up," Coleman said.

    Not really, said Jon Groveman of Vermont Natural Resources Council.

    "We have the least groundwater protection of any of the states I have come across," Groveman said.

    The Senate's environment committee, run by Sen. Virginia Lyons of Chittenden County, is now working on the bill to toughen groundwater regulations.

    "There has been a lot of discussion about whether declaring groundwater a public trust will lead to more lawsuits," Lyons said. "But … the point of the legislation is to protect a very important resource for the state. The first step is to say it is a public trust and that we want to save it."

    It is likely to be a long road for those who want greater regulation of groundwater use. The person in Montpelier with the single biggest say over whether new laws get put on the books — Gov. James Douglas — is no fan of the idea.

    "I am concerned about the Legislature taking steps in that direction," he said recently. "We don't want to be overly restrictive. I think we have done much better than other states maintaining water quality."

    He is leery of "a rush to regulate," Douglas added.

    Lawmakers still have some questions to answer in the bill, however. For one thing they are considering whether to exempt farms from the permitting requirement. For another it is not completely clear how broad the uses of water are that will be affected. Golf courses, municipal water supplies and other demands on aquifers could all draw water in significant amounts.

    And perhaps uses that actually remove water from the area — like water bottling plants — should be treated differently than other interests like farms, legislators said.

    Stephen Kay of the International Bottled Water Association said his group does not object to such legislation — as long as it is based on the science of hydrology and treats bottled water companies like everyone else.

    "Those are policies we do think make sense," he said. "There are many, many users of the water resource, not just bottled water."

    The Montpelier Spring Water Co. is not a member of the association.


    There is another major roadblock for environmentalists who want to declare groundwater a public trust: Farmers use it.

    In Vermont, farmers have traditionally been given the benefit of the doubt when it comes to environmental regulations, even as they apply to clean water. The Agency of Agriculture, not the Agency of Natural Resources, takes the lead on most farm permitting. For example, farms are exempt from review under Act 250, the state's broad land use law. And Vermont even has a "right to farm" law that trumps some limits on agriculture.

    Farm advocates see the regulation of groundwater as a step toward bringing agricultural permitting under the Agency of Natural Resources.

    "We oppose making groundwater a public trust," said Jackie Folsom of the Vermont Farm Bureau. "We don't think it is a necessary or good thing to do."

    "We always prefer to have the Agency of Agriculture be in charge of anything agricultural," Folsom said. "We have tried very hard to keep everything in the Agency of Agriculture."

    The Vermont Farm Bureau and Rural Vermont, which represents mostly diversified agriculture and small farms, sometimes disagree on issues in the Statehouse. On this issue, however, they are united. That's because dairy and other farms that use a lot of water, including vegetable operations, might be affected.

    Amy Shollenberger of Rural Vermont said, "We have serious concerns about the impact on the agricultural community the way the bill is written."

    "The farmers would have to get permits from the Agency of Natural Resources," she said. In addition "the bill opens farmers up to lawsuits in an entirely new way."

    Groveman and Lyons disagree.

    The bill in fact protects farmers' right to water, by establishing it as one of two priority uses for groundwater, along with drinking water. "The bill is very much a pro-farming bill," Groveman said. "There shouldn't be fear among farmers about public trust."

    In fact the bill is as much about preserving water for farms as it is about anything else, Lyons said.


    Part of the problem is that the state's current groundwater protection laws are based on the regulations for drinking water systems which are focused on water quality – not protecting other wells, streams and rivers from excessively large withdrawals, Groveman and Matt Levin of Vermonters for a Clean Environment said.

    "We want a strong program to protect groundwater, which we don't have," Groveman said. "Vermont is very vulnerable. It is time to close that gap in our water protection rules."

    The question of who owns groundwater — private landowners or the state as a whole — is not clear now, Groveman said.

    "Right now the answer to that question depends on which lawyer you ask," he said. "Let's just put it in statute that the public owns the water."

    And while there have not been lawsuits in Vermont over the use — or overuse — of groundwater as there have been in other states, there have already been problems, Levin said.

    Williston developments have had trouble with a lack of well water, Randolph has seen problems with stream flow perhaps related to large withdrawals for bottled water and the town of Montgomery has also had problems with water availability, Levin said.

    And then there is Danby, where residents argued they had to drill wells deeper after international mining company Omya drilled test wells in the area.

    James Hamilton, Omya's vice president of Environmental and External Affairs, said drought conditions that year may have been to blame.

    "We are not aware of any evidence to indicate that the Omya pump test was the reason for depleted water supplies reported in the Danby area. There is every reason to believe any such depletion was a result of chronic regional drought conditions," he said. "We are not aware of any expressions of concern since that drought period, nor have we received any reports of wells or springs that have not returned to normal."

    But one neighbor said in testimony before the Senate committee in January that she remains convinced the pump test caused the problem.

    "Based on my family's experience, I believe that we need to have a system that assures that people who could be affected by a large groundwater withdrawal have a stake in deciding whether or not it's in our community's interests to approve it," Heather Whitley said in written testimony. "We need to have informed consent."

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