Our Work

Who Owns Vermont’s Water?

The Intensifying Debate Surrounding a Vital Part of Vermont’s “Commons”

February 2008

By Johanna Miller
Most Vermonters don’t think much about the water that flows from our taps — groundwater, primarily — until there’s a problem. Like contaminated water. Or, no water at all.

The idea that the free flow of this seemingly inexhaustible resource might be an issue in Vermont — that Vermonters’ wells could run dry — has not crossed many people’s minds. Until recently that is, when the Vermont Natural Resources Council identified and began to raise serious questions about a gap in the state’s water laws.

What we found was troubling. Vermont does fairly well in protecting water quality. But, in an increasingly thirsty world, the Green Mountain State does far too little to safeguard water quantity.

It’s an understatement to say that what flows into our sinks, our bathtubs, our showers, is a precious resource. Indeed, it is a vital, life sustaining resource. Vermont’s current legal framework, which places few limits on the amount of groundwater one can pump out of the ground, threatens to undermine the long-term availability of fresh water for important public benefits like municipal drinking water and farming.

For several years, VNRC has advocated for action that would allow diverse use of the resource but help protect against over-consumption and depletion. In recent years, Vermont has taken steps to begin to address this issue. In 2006, the Legislature passed an interim permitting law for large-scale withdrawals and created a task force to study the issue and make recommendations to address it. In 2007, the state dedicated the first infusion of funds to begin the essential first step toward a solution: Map the resource.

In January of this legislative session, Senate leaders, including Diane Snelling (R-Chittenden) and Ginny Lyons (D-Chittenden) introduced a bill that would create the comprehensive groundwater protection program. The bill — S.304 — has three primary components. It would:

1) Require reporting on all withdrawals over 10,000 gallons per day.

2) Create a regulatory program that allows diverse use of the resource but helps safeguard against over consumption and depletion.

3) Declare groundwater a “public trust” resource.

More than two-thirds of Vermonters rely on groundwater for drinking water. Farmers rely on groundwater for irrigation and for drinking water for farm animals. Businesses rely on groundwater for their operations. If enacted, legislation supporting a strong groundwater management program would significantly bolster the state’s ability to safeguard supplies for important current and future uses.

In an increasingly water-scarce world, such measures are essential. They could help avoid scenarios like those that played out powerfully in the Southeast and Southwest recently, when there was too little water to go around.

Last summer, New Mexico’s governor called on Midwestern states to ship Great Lakes water to the arid Southeast. A historic drought in Georgia, meanwhile, rapidly shrank the state’s water supplies and triggered the governor to declare a state of emergency. For months, Georgia leaders squabbled with Florida officials over water supplies and millions of residents fretted about access to ample supplies of clean, fresh water before rains finally replenished their supply.

What’s the connection between water shortages in arid, southern states and the water-rich state of Vermont? As thirsty communities look beyond their borders to meet their water needs, that connection becomes more clear. Combine the impending reality of thirstier and thirstier communities with the fact that demand has already outstripped supply in some Vermont communities and the situation begins to look much worse.

The list of water problems has been growing in Vermont in recent years. In Williston, new housing developments drew so much water from an aquifer that wells went dry. In Randolph, a water bottling operation sucked so much water out of a nearby aquifer that neighbors’ wells dried up and a nearby trout stream was degraded. In the rural Northeast Kingdom town of Montgomery, a lack of rain triggered water shortages significant enough to place the community on a boil water order and force the town to truck in water for customers whose taps ran dry.

Recent new proposals to tap Vermont aquifers for water bottling operations in Claremont, NH, and East Montpelier have triggered important community conversations about ownership of the resource. The proposal to bottle and sell spring water from a source right outside the capital city has ignited a lively civic debate over ownership of water.

As East Montpelier and other Vermont communities wrestle with their individual situations, the state is working to help towns get in front of water problems by implementing stronger state-level protections for the resource. It’s promising that many legislators and stakeholders agree that there is a problem, and that it needs resolution. How Vermont resolves the situation, however, is yet to be determined. It is also the most critical piece of the equation.

VNRC strongly believes that declaring groundwater a public trust resource provides a vital framework that could help answer one of the most important questions swirling around this issue — who owns our water?

Unfortunately, the public trust issue, which would help assure that public interest in the resource comes before private interest, is the most controversial element of the bill.

The concept of the public trust is nothing new. The ancient legal doctrine holds that government, on behalf of the citizens, has an obligation to manage certain resources for the public good.

It has long been established that Vermont’s surface waters — the state’s lakes, ponds and rivers — are a public trust resource. Essentially, the designation signifies that the water’s of the state belong to all Vermonters, as a common resource. Despite the hydrological connection between groundwater and surface water and the importance of safeguarding our primary drinking water supply, however, the public trust doctrine does not apply to groundwater.

This disconnect in public policy is troubling, not only because it fails to equalize protections for an interconnected resource (illogical if nothing else). It’s troubling as well because water is an essential, life sustaining resource, which must be managed carefully to ensure its availability into the future. Declaring groundwater public is a good, old Yankee-common-sense strategy that would help accomplish this goal. Many other states, including neighboring New Hampshire, have already embraced public trust. New Hampshire’s groundwater has been afforded this safeguard since 1998.

For many, the question is not whether lawmakers should declare groundwater to be a public trust resource but, rather, why they would not do so.

In recent weeks, the Senate Natural Resources Committee started deliberation on the comprehensive groundwater bill — and the controversial public trust component. A diverse array of concerned Vermonters have voiced their support for the declaration, among them, the faith community.

In 2006 the Diocesan Convention of the Episcopal Church in Vermont, at which 46 of 50 parishes were represented, passed a resolution that supports strong legislative action to safeguard groundwater and declare it a public trust resource. The Diocese’s explanation for this action is as follows:

“Groundwater is an aspect of God’s Creation under threats of contamination and depletion. Clean, healthy water is essential for human health and for ecological health as well. Water should be considered a part of the commons, accessible to all for the common good, rather than a product sold for profit.”

The spiritual and moral reasons of the Diocese and others complement the more practical reasons that move organizations like Two Rivers-Ottauquechee Regional Commission to support strong action.

In a memo sent to the Senate Natural Resources Committee, Kevin Geiger, a senior planner at Two Rivers Ottoquechee Regional Planning Commission (TRORC) stated that his organization, “strongly support(s) the concept put forward in S. 304 that groundwater is held in the public trust and is not a private commodity to be used at will to the detriment of others. Vermont is currently blessed with plentiful and clean groundwater, but that this condition will continue is not necessarily certain. Many organizations have warned that access to clean water will be one of the challenges of this century. The climate is changing, and exactly how that will affect us is not known.”

As a planning entity, TRORC’s comments are not all that surprising. Suggestions that point Vermonters towards thinking about the future, needs and possible scenarios, offer important context to inform the debate taking place under the Golden Dome.

To guard against water shortages and competing interests in the resource, the state has a responsibility to consider future uses. S.304 currently includes a provision that prioritizes municipal water supplies and agriculture over water bottling operations. This could help avoid problems down the road when debates over ownership of the water increase.

In East Montpelier, that debate has been intensifying, fueled by a proposal last year to tap a spring which, at one time, served as downtown Montpelier’s primary water supply. Thin details and deep concern about the proposal have triggered a strong grassroots reaction. Despite a petition with over 60 signatures of residents requesting a public forum on the proposal, the East Montpelier Selectboard declined to host a meeting. Concerned about the impacts a withdrawal of up to 300,000 gallons a day could have on area wells, natural resources and the long-term availability of the resource area residents organized a public meeting to learn more about the water bottling proposal.

For Carolyn Shapiro, one of the lead organizers, the growing trend towards privatization of public resources moved her to act.

“The issue of privatization first came to my attention when I learned of a multi-national corporation taking over ownership of Bolivia’s municipal water supplies and the dramatic price increases that ensued. Since then, we’ve seen increasing world and national problems around water. The drought in Georgia, for example. When a proposal to privatize, bottle and sell water popped up next to me, I became quite concerned and wanted to explore it,” said Shapiro.

It was within this context that Shapiro set about helping to organize the January 17 public forum. “Proponents are saying it’s good for the town; taxes and jobs. But it’s a broader issue for me. This issue brings out the notion of the public good,” she noted. “For me, it’s really about understanding what common the resources are and how that dovetails — or might not dovetail — with any kind of privatization.”

About 75 people packed the U-32 High School classroom, asking way more questions than there were answers. Most attendees raised serious concerns, but that feeling was not unanimous. Elliott Morse, a neighbor to the project, spoke in favor of the proposal at the forum saying, “They’re not stealing anybody’s water. That spring is as big as this whole room; eight feet deep. Water rushes out of that spring.”

The meeting clearly demonstrated that the public is cautious about the fate of an important community resource. Beyond questions relating to the day-to-day waste, energy and natural resource impacts that would come with the ‘Montpelier Springs’ water bottling operation, the question of who owns the resource topped the list of the community’s concerns.

Many residents walked away from the forum with important questions left unanswered. One result of the evening was the quick turn-around of a successful petition drive to place a temporary moratorium on large-scale water withdrawals in the community in front of voters on Town Meeting Day.

On March 4, with the ‘Montpelier Springs’ proposal in the background, East Montpelier residents will be asked vote on a temporary prohibition that would “allow the citizens of the Town adequate time to gather information regarding the impact of such withdrawals on the citizens and natural resources of the Town.” The moratorium was carefully crafted to ensure that existing water uses, like agriculture, are exempted from the temporary moratorium until the community considers the issue in greater measure.

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Like many complex community issues, there are no easy answers about how best to manage groundwater supplies. But the reasons for pushing for a thoughtful response are clear to communities who have faced problems in the past, and people who are considering the needs of the future.

Municipal drinking supplies. Agriculture. Industry. Long-term water security and availability. These purposes serve as powerful reminders of why Vermonters must act quickly to get in front of potential problems. Passing strong legislation which declares groundwater a public trust resource and sets up a system to manage it takes Vermont far down a path towards long-term protection.

Such action, however, is undoubtedly not enough.

Commercialization, privatization and trade agreements further complicate the situation. That’s why, when it comes to this essential, common resource, concerned citizens must remain actively engaged in ongoing community conversations about water. A sustainable and secure future demands it.