The Case for Declaring Groundwater a Public Resource

January 11, 2008

VNRC is urging lawmakers to formally declare groundwater — the source of drinking water for two-thirds of Vermonters — a public trust resource. This declaration is a fundamental step toward protecting this resource now, and for future generations of Vermonters.

Vermont’s groundwater is absolutely integral and vital to the economy, environment, and health of the state and its citizens. More than two-thirds of Vermonters rely on groundwater for their drinking water. Farmers rely on groundwater for irrigation and for drinking water for farm animals. Businesses in Vermont rely on groundwater for their operations.

Despite the importance of Vermont’s groundwater, the state remains one of the last in the nation without adequate safeguards in place to protect the resource from overconsumption and contamination. Read VNRC’s full analysis of the problem – and its potential solution – here.

Vermont must take action immediately to remedy this situation. One of the most basic steps Vermont can take to do this would be to declare groundwater a public trust resource, a declaration which essentially places the public’s long-term interest in the resource above private interest.

Pressure on Vermont’s groundwater — which gets recharged by rainfall, but very, very slowly — is increasing. As Vermont grows, demand for groundwater will continue to rise and in some parts of the state has already outstripped the rate of recharge. In addition, national, regional and global water shortages will likely place additional stress on water supplies as people in drier areas look beyond their borders to meet their water needs.

All of these issues combine to make a powerful and timely case for declaring Vermont’s groundwater a public trust resource, a move that would simply afford our underground water supplies the same protection our surface waters now enjoy.

Adopting the public trust doctrine for groundwater is a simple, reasonable, and important step the state can take to assure sufficient groundwater supplies exist today and for generations of Vermonters to come.

The concept of the public trust is an ancient legal doctrine that holds that government, on behalf of the citizens, has an obligation to manage certain resources for the public good. Recognizing groundwater as a public trust resource would require the state to ensure that water is managed and used in the public interest to benefit all Vermonters.

It has long been established that Vermont’s surface waters — in lakes, ponds and rivers — are a public trust resource. However, despite the fact that groundwater and surface water are hydrologically connected, legally the public trust doctrine that applies to surface water does not automatically apply to groundwater. The state should correct this irrational distinction.

Designating groundwater as a public trust resource will simply place it on equal footing with surface water – assuring that all of Vermont’s water resources are managed in the public interest.

Despite what some critics suggest, declaring groundwater a public trust resource has not prompted lawsuits. In fact in New Hampshire, where groundwater has been declared a public trust resource only since 1998, no such lawsuits related to the public trust have been filed. Moreover, there has been no flood of public trust litigation in Vermont over surface water, which has been recognized as a public trust resource for nearly 100 years.

Given that surface water is recognized as a public trust resource, question is not whether lawmakers should declare groundwater to be a public trust resource but rather, why they should not do so. Why shouldn’t Vermont adopt this groundwater protection tool that simply recognizes the public nature and common usage of water?

The state has an obligation to manage Vermont’s groundwater resources to ensure its use and availability for current and future Vermonters. Accordingly, VNRC urges the Legislature to declare groundwater to be a public trust resource.