Protecting Groundwater: The Case for Filling a Gap in Vermont Water Law
The Vermont Natural Resources Council has identified — and been working to fill — a troubling gap in Vermont’s groundwater use laws. The gap is particularly concerning given the intensifying pressure on water use as a result of increased water scarcity and climate change. Water use conflicts are growing in areas of the United States that historically have not had to wrestle with water shortages. This, coupled with the water availability crisis that exists in many parts of the world, makes it clear that it is now more important than ever to close the gap in Vermont’s water use laws so that the groundwater problems discussed below do not become more widespread, and that Vermont protects its underground drinking water resources for current and future generations.
I. Gap in Vermont Groundwater Protections
How Neighboring States Address Groundwater Withdrawals
Vermont is behind most states in the country in terms of addressing withdrawals of groundwater and water from springs. Vermont is the only state in the country that VNRC is aware of that does not have state groundwater maps. Moreover, unlike the majority of states in the country, Vermont does not have an overall water use program that addresses withdrawals of surface water, groundwater, and water from springs.
For example, New Hampshire, Massachusetts Connecticut and Maine all have specific programs that require permits for large withdrawals of groundwater and water from springs for commercial/industrial purposes and withdrawals for public water supplies. These programs examine the need for the withdrawal of water, whether the withdrawal is in the public interest or consistent with the use of water as a public trust resource, the impact of the proposed withdrawal on existing uses of water, the impact of the withdrawal on natural resources (in particular surface waters and fisheries habitat that may be affected by flow reductions as a result of large withdrawals of groundwater or water from springs), and the affect of a large withdrawal on long term water use planning.
The programs in our neighboring states also have specific provisions that address water bottling. In particular, they directly address the fact that unlike other uses of water, water bottling involves the transfer of water out of the watershed. These “inter-basin transfers” remove water from the local hydro geologic cycle. This differentiates withdrawals for water bottling from those for residential use and certain commercial and industrial uses that discharge water rather than removing it entirely from the area the water is drawn.
In addition, programs in the states referenced above all require large users of groundwater and/or surface water to report the amount of water used annually. Agriculture is not exempt from these water use reporting programs. In fact, the majority of states in the country have specific groundwater reporting programs for the amount of groundwater and/or surface water used. VNRC is not aware of any water use program that exempts agricultural uses from reporting.
II. Vermont’s Groundwater Use Laws
In contrast to our neighboring states, and the majority of states in the country, Vermont has minimal laws that address the withdrawal and use of water from groundwater and springs. The water use laws Vermont does have represent a patchwork of requirements that do not fit together in any meaningful way to address water use management today or in the future. The water use programs in the states described above (New Hampshire, Massachusetts, Connecticut and Maine) all include an element of water use planning that does not exist in Vermont. This lack of water planning is evident in the stories of groundwater use problems in Vermont that are described in the second part of this memorandum.
Vermont’s groundwater use laws focus primarily on the use of water for public water supplies and drinking water, not water for commercial, industrial and agricultural uses. Vermont’s central laws that address groundwater use are set forth in Title 10, Chapters 48 and 56. The main focus of both of these chapters is on water supplies. These chapters are primarily implemented through the Vermont Water Supply Rule (WSR).
Vermont’s Groundwater Laws Focus on Groundwater Quality Not Quantity
The focus of the WSR is not on water quantity – how much water is being withdrawn and the impacts of the withdrawal – but rather on the quality of the water for drinking. The Introduction to the WSR states:
First, and most important, the rule’s primary purpose is to regulate water systems in the state so that they provide clean and safe drinking water to Vermont’s citizens. This is true for the smallest, single house source to the state’s largest system. The rule also establishes well construction standards (contained in Part 12 of Appendix A) which apply to every constructed well in Vermont regardless of the type of facility it serves.
Second, by implementing this rule, Vermont qualifies to retain “primacy” for the Safe Drinking Water Act from the federal US Environmental Protection Agency (EPA). Primacy means that the state will administer the federal regulations that apply to all public water systems in the country, instead of EPA. Without state regulations that are at least as strict as the federal ones, Vermont may not administer the federal regulations.
The purpose of the federal Safe Drinking Water Act is to ensure the quality of American’s drinking water. Accordingly, it is clear that the WSR and the Vermont programs implementing the WSR were established to address the quality of water from public water systems, not the use and availability of groundwater and water from springs and how to address the impacts of large commercial, industrial and agricultural withdrawals.
In fact, a review of the summary of the ANR Water Supply Division’s (WSD) website reveals that the focus of the WSD is on assisting and permitting public water systems and protecting drinking water quality. Addressing large withdrawals, managing water use conflicts and long term water use planning is not referenced anywhere in the description of the major WSD programs. This is the major gap in Vermont’s groundwater/water use and protection laws.
The WSR does not address any commercial or industrial uses of water other than certain provisions of the WSR that apply to bottled water. In 1995 the Vermont Legislature passed a law that required the Agency of Natural Resources (ANR) to regulate water bottling operations under its public water systems programs. Accordingly, the WSR does require water bottling operations to obtain permits prior to operating in Vermont. However, as noted above, the primary purpose of the WSR is to address water quality, not quantity. Accordingly, the focus of water bottling regulation in Vermont is on the quality of bottled water rather than the impacts of withdrawing water for bottling.
In fact, the WSR includes no specific provisions to address the impacts of large withdrawals for water bottling on exiting agricultural, commercial and industrial uses of water; natural resources, surface waters and fisheries habitat that may be affected by flow reductions as a result of large withdrawals of groundwater or water from springs; removing water for bottling from the watershed; and the effect of a large withdrawal on long term water use planning in Vermont. In other words, the current law fails to consider the long term needs for water in a region and how permitting a large withdrawal for water bottling could affect this need.
Again, this is in stark contrast to New Hampshire, Massachusetts, Connecticut, Maine and the majority of states in the country that have specific programs that address large withdrawals and water use planning. VNRC believes that rather than tacking water bottling regulation to a statute and rule that focuses on public water supplies and drinking water quality we should take a lesson from our neighboring states and set up a comprehensive program to address water quantity issues, large withdrawals, and water use planning.
The 2006 Interim Groundwater Withdrawal Law
In 2006, the Vermont Legislature recognized these gaps in Vermont’s groundwater use law by passing a bill that, on an interim basis, required anyone who wanted to make a large commercial or industrial withdrawal of groundwater obtain a permit from ANR. A “large” withdrawal was defined as one greater than 50,000 gallons per day (gpd), a figure based on the 50,000 gpd threshold in New Hampshire’s groundwater use law. The interim law required that applicants proposing large commercial and industrial withdrawals meet the criteria in the WSR.
It was a positive step that the Legislature moved to address this gap in Vermont’s water use laws on an interim basis. However, as discussed above, the WSR is the wrong tool to address the impacts of large withdrawals. That’s because the WSR focus on public drinking water quality, not the broad potential impacts of withdrawals and on long-term water use planning. Accordingly, even with the interim law, Vermont is behind its neighboring states that have programs that focus on the impacts of large commercial, industrial and agricultural withdrawals and long-term water use planning.
Water Use Reporting
In addition to not addressing long-term impacts, the 2006 interim groundwater law does not address comprehensive groundwater reporting. As a result, unlike our neighboring states and the majority of states in the country, Vermont still does not have water use reporting program for commercial, industrial and agricultural withdrawals. Representatives from the WSD have testified that they may be able to estimate the amount of large groundwater withdrawals by looking at the amount of water discharged by large commercial and industrial operations. However, the WSD should not have the burden to devote staff time to estimate water usage. Also, estimations are insufficient to answer, with the confidence and accuracy, what is necessary to protect the resource over the long-term. Vermont should follow the lead of the majority of the states in the country and enact a groundwater reporting requirement as part of a comprehensive water use management program.
Applications for Permits Under Interim Law
VNRC is not aware that any applications have been submitted to ANR for a permit since the interim groundwater law went into effect last year. VNRC believes this is due to numerous factors.
First, the law has only been in effect since July 2006, one full construction season in Vermont. That is not a sufficient amount of time to judge the number of projects that will be subject to large withdrawal permitting in Vermont. In addition, the fact that the law grandfathered all existing large withdrawals and applies only to new, large withdrawals significantly limited the pool of applicants for the new permit. Moreover, the interim program has not been well publicized, and there may be users that do not know about the new law. Finally, as noted below, there are new water bottling proposals being considered in Vermont that would likely trigger the law. It is unclear what part, if any, the interim law has played in the development of these proposals and other large withdrawals that are in the planning and development stage.
At the end of the day there may not be scores of proposals that trigger the interim law over the first years of its implementation. For example, New Hampshire has issued approximately 20 large groundwater withdrawal permits since its law went into effect in 1999. However, due to the large nature of these withdrawals (over 50,000 gpd compared to the average household in the United States that uses approximately 70 gpd) it only takes a few to affect water use and natural resources in a community, and these few withdrawals require a comprehensive review by the ANR and the community under the umbrella of a comprehensive water use program.
Other Vermont Water Use Laws
As noted above, Vermont’s water use laws are a patchwork of requirements that exist in various Vermont statutes and rules. In addition to the WSR, the Vermont Water Quality Standards address surface water withdrawals and in-stream flow standards. However, the only permits required related to water quantity under Vermont’s surface water laws are for dams, water withdrawals for snowmaking and large surface water withdrawals that require a federal permit from the Army Corps of Engineers. None of these statutes or rules apply to large groundwater water withdrawals or water from springs or long-term water use management and planning.
There is also a groundwater classification program in Vermont and programs that address groundwater contamination. But, these programs address groundwater quality, not quantity, and water use management.
Act 250, Vermont’s state land use law, includes criteria that examine the impact of a project on existing water supplies, streams and wetlands. Accordingly, if a large water withdrawal triggered Act 250 review, parties to Act 250 could raise concerns about the impacts of the withdrawal on existing water supplies and certain natural resources. However, not all large withdrawals will trigger Act 250. For example, withdrawals for bulk water – water trucked off site for bottling or other uses – often utilize very little land and would likely not even require an Act 250 permit.
More importantly, Act 250 has proven to be ineffective at addressing the impacts of large withdrawals. Act 250 district commissions are staffed by lay people appointed by the governor. Commissioners are not typically experts in hydrology or groundwater science and, therefore, often times will lack the context needed to accurately judge what the off site effects of a large withdrawal will be. Because ANR does not have any specific groundwater water withdrawal permit programs, ANR staff are often reluctant to testify about the impacts of a large withdrawal. That places the burden on community members to hire experts to address the impacts of withdrawals on existing water uses and natural resources. This is usually cost prohibitive for community members.
VNRC has been involved with and aware of Act 250 projects that involved large withdrawals. The projects ranged from water bottling operations, to quarries, to golf courses. In each case, members of the public and the Act 250 commissioners had concerns about the impact of the proposed withdrawal. ANR struggled to participate in the review because the issues raised fell outside the purview of specific ANR permit programs and community members were unfairly left to shoulder the burden to prove what the impacts would be.
III. Real Life Groundwater Problems in Vermont
Against the backdrop of the gap in Vermont’s groundwater/water use laws described above, VNRC provides the following real life examples of groundwater problems that people have experienced in Vermont. This is just a sample of the type of issues that have come to VNRC’s attention through our work with concerned citizens and other organizations working across Vermont on this issue. There are undoubtedly many more stories affecting Vermonters. Most of the problems outlined below came to our attention when people learned we were working on groundwater protection in Vermont and contacted us with their stories.
The growing Town of Williston, Vermont, has wrestled with groundwater issues. An entire neighborhood experienced water quantity problems – wells running dry – as a result of competing demands for groundwater by burgeoning subdivisions in Williston. Before the groundwater study committee in the fall of 2006, the Williston planner testified that these subdivisions were designed to avoid Act 250 review, and because the town did not examine the effect of drilling new wells on wells in existing subdivisions. Williston was unaware that the new subdivisions were likely taking water away from existing subdivisions.
There are two lessons to be learned in this story. One is that Act 250 is not the answer to managing water use. Second, it reveals that Vermont does not have an unlimited amount of water. If Williston has limited water, what other Vermont towns are in the same situation? Without state groundwater maps, Vermont does not know. How would the communities already facing water shortages be impacted if a large groundwater user (more than 50,000 gpd) decided to locate in Williston? Without a program to address long-term water use management and planning, how will Vermont prevent the problems that happened in Williston elsewhere?
The example in Randolph involves what is commonly referred to as the Vermont Pure water bottling operation, although Vermont Pure is now owned by a company called ClearSource. The Vermont Pure operation was required to get an Act 250 permit for one of the two springs they use in Randolph, and community members raised concerns in the Act 250 process about the impact of the operation on a productive trout stream called Blaisdell Brook and on existing wells in the vicinity of the project. ANR did participate in the Act 250 proceeding to review the concern about the impact of the withdrawal on the trout stream. ANR recommended that an in-stream flow limit be set in the Act 250 permit to protect the stream in order to prevent the withdrawal from lowering the flow of the trout stream below a certain level. ANR’s recommendations were adopted in the Act 250 permit. Nevertheless, the Act 250 District Commission found that the water bottling operation would not adversely affect existing wells.
Despite these permit conditions recommended by ANR, the Vermont Pure withdrawals at times did significantly reduce the flow of the trout stream to a point where the stream was only half full of water. In fact, as a result of this reduction of flow in the stream, ANR has recommended that this once excellent trout stream receive the lowest classification for waters in Vermont, aside from “mixing zones” that accept direct discharges of sewage, because of the impact of the Vermont Pure withdrawal. Moreover, members of the community experienced lowering of the water levels in their wells as a result of the Vermont Pure withdrawal, notwithstanding the findings in the Act 250 permit to the contrary
In 2000, a multinational mining and mineral processing company, Omya Inc., announced its plan to open a new mine in the Danby Four Corners Valley, which is home of the largest Class 1 wetland (a wetland getting the highest level of protection) in Vermont, the Tinmouth Channel. As part of the proposed mine project, Omya would have “dewatered” the mine by drawing water out of it in order to dig out the minerals. Citizens hired experts who identified high-quality wetlands immediately below the mine site. As a result, ANR required Omya to conduct a year-long hydrogeology study prior to filing for a permit under Act 250. As part of that study, Omya conducted a five-day pump test in the last week of August 2002. The purpose of the test was to determine what impact the mine dewatering would have on the wetlands.
Within two weeks of the pump test, neighbors began reporting loss of water. At least six springs and one well were reported to have gone dry. When neighbors contacted Omya, the response was that any problems were caused by a drought, and not Omya’s fault. When neighbors contacted ANR to report problems with their individual wells, ANR’s staff person in charge of the pump test said, “We’re not interested in water supplies. We are only looking at the impact on the wetlands.”
No information was ever made available about the tests or how much water was withdrawn. But as a result of the impacts of the “test,” citizens spent thousands of dollars to restore their lost water, where possible, and were inconvenienced for months. Requests of both Omya and ANR for copies of the pump test data have been repeatedly denied.
This experience highlights several serious – and real world – problems with Vermont’s lack of protection for groundwater users. As one Danby resident has stated in regard to this situation with Omya, “If you have a well and someone in your neighborhood sticks a big straw in the ground and sucks up a lot of water at one time, you are truly on our own.”
This past summer, it came to the attention of the communities of Montpelier and East Montpelier that a large water withdrawal for a water bottling operation was being planned that would have an impact on both municipalities. The proposal came to light when the developer sought permission to lay pipes for the operation in municipal rights-of-way. It remains unclear how much water the bottling operation would draw, but estimates vary from between 250,000 – 1 million gpd. What is known is that the proposal would tap a historic spring in East Montpelier that used to be the water supply for the city. Concerns have also been raised about the potential impact of the proposal on wetlands, streams and existing wells. More importantly, perhaps, is that a proposal to withdraw such a large volume of water for bottling has raised significant concerns in Montpelier and East Montpelier about who owns the water and who owns the right to sell a shared resource for profit.
The proposal also has triggered a debate about what effect the large withdrawal would have on a potential backup water supply for the City of Montpelier in the event Montpelier’s main water supply became compromised. These questions focus on precisely the issues that would be addressed if Vermont adopted a comprehensive water use and planning program.
Pristine Mountain Springs
In October 2007 a privately-owned Canadian water bottling company called Ice River Springs applied to the Claremont, New Hampshire planning board to construct a 273,000 sq. ft. water bottling plant. At the sole public hearing on the proposal on October 22, the spokesman for Ice River Springs said that the majority of the water that would be bottled would be coming from Vermont. When pressed, he identified the water source as Pristine Mountain Springs. He indicated that at full build-out, the plant would be bottling 300,000 gallons per day, of which 60 to 75 percent would come from Vermont.
Pristine Mountain Springs is located in Stockbridge, Vermont. The water source was originally developed in the 1960s as the Chalet Village Water Supply (CVWS), to serve 32 mostly-seasonal residences. In 1994, the developer received a bulk water permit, several years after water was already being sold from the site. For years, water tank trucks drove into the housing development in the middle of the night and filled the trucks directly from the well house. Complaints to the town went nowhere. Eventually a pipeline and building were constructed next to the housing development, where trucks now fill from a holding tank within the building.
Pristine Mountain Springs is now the source of water for Vermont Pure’s three- and five-gallon home and office water bottles. In addition, it is half the source of water for ClearSource in Randolph, and also supplies water bottled under the GNC brand and to Dalton Spring Water Company in Braintree, Mass. Water from PMS is also bottled in Brattleboro under other labels.
How much water has been withdrawn from the aquifer in Stockbridge? Because the developer holds a bulk water permit – and that permit requires monthly reporting of withdrawals – that should be easy to answer. Unfortunately, it has come to light recently that the developer has never filed required monthly withdrawal reports.
Pristine Mountain Springs is located next to the Tweed River, which is a trout and salmon stream. No evaluation has been done on how the water withdrawals might affect the fisheries habitat.
PMS does not have an Act 250 permit. The file at the Water Supply Division contains no scientific studies. It appears that there has never been any evaluation of the water taking on the potential impacts to the environment or neighboring water supplies.
Montgomery, Reading, Bakersfield, Waitsfield, Dorset, Ski Areas
VNRC is aware of several other water use issues that exist in Vermont. For example, this summer in Montgomery the public water system ran short of water due to drought. The town had to ship water in to supply area residents as a stopgap measure to address the situation. Water shortages – wells and springs running dry – have also been reported in Reading. Dorset has grappled with the impact of groundwater withdrawal on high quality wetlands for years. A proposal for a potential large water bottling operation in Waitsfield has been at the center of local debate in the community for years. A water bottling facility was proposed in Bakersfield several years ago, but was dropped due to local concerns about roads, zoning, and land use. Several ski areas have had difficulty finding sufficient water supplies for their development plans.
These are a just a smattering of examples that demonstrate the diversity of groundwater issues and the seriousness of the problem. The common thread that runs through all of these situations is that there is no overarching review of the use of water in Vermont to let these communities know how large withdrawals would affect the long-term need for drinking water or natural resources that rely on groundwater and springs for recharge.
Vermont continues to lag far behind our neighboring states and the nation in efforts to safeguard our groundwater — the primary source of drinking water for two-thirds of Vermonters. As water resources across the world, the nation and the Green Mountains become increasingly scarce and sought after, Vermont remains in the precarious position of being one of the last states in the country to adequately protect our underground drinking water supplies from overconsumption.
Little knowledge about the quantity and location of Vermont’s aquifers, coupled with no overarching program to manage the resource, leaves the state vulnerable to problems. In recent years, Vermont has made important headway to begin addressing this issue, including creating the governor-appointed groundwater task force to consider and make recommendations on a program for the state.
Now is the time to remove Vermont from its current position as one of the last in the nation to enact a groundwater protection program that allows diverse use of the resource, but guards against potential problems. The reasons for such action now, as outlined above, is clear. And the implications a warming world is having on access to and availability of fresh water supplies only intensifies the need for Vermont to take action now.
Vermont must seize on this important opportunity to close the increasingly dangerous gap in Vermont’s water laws. Based on years of exhaustive research, thorough analysis, powerful, real-life examples and increasing pressure on the resource, VNRC believes the State of Vermont is poised to embrace a program that will safeguard this life-sustaining resource for use by and for all Vermonters.
In this vein, VNRC hopes the Legislature and governor will pass and enact a comprehensive program that meets the needs of all Vermonters today while preparing for the challenges and needs of tomorrow. That protection program would include:
- Continue the funding in Fiscal Year 2008 and fully fund the Agency of Natural Resources to map all of Vermont’s groundwater resources.
- Create a comprehensive program for managing groundwater withdrawals to ensure Vermont does not deplete its drinking water and guarantees public involvement in decisions about the future of this vital resource.
- Hold all of Vermont’s surface and drinking water in the public trust to ensure that Vermont’s water is owned by no one person, but by everyone and that any large commercial use is carefully considered with the public’s interest as a first priority.