Please join me in supporting S.304, a bill to regulate groundwater withdrawals, as revised by the House Fish, Wildlife, and Water Resources Committee, of which I am a member. The bill’s goal is to provide groundwater protection that is equivalent to the same level of protection provided to surface water. This bill particularly benefits farmers and the roughly two-thirds of all homeowners in the state who draw their water for sustenance from the ground.
As long ago as the 1820s, the Vermont Supreme Court decided that while we own and use surface water in common under the legal doctrines of public trust and riparian use, landowners owned outright the water in the ground under their land. Under this doctrine a landowner could draw an aquifer dry without consideration of their neighbors’ needs or dependence on such aquifer. Not only did this doctrine of outright ownership fail to protect a homeowner’s reasonable use of his well, but the doctrine was also scientifically wrong because surface and ground waters interact with each other. There is no reason to distinguish between the two.
In 1985, the Legislature began correcting this ancient judicial mistake by abolishing “the common law doctrine of absolute ownership.” Instead, it decided that the doctrine of reasonable use should govern groundwater in the State, which is similar to one of the legal doctrines that apply to surface water—riparian use. Since that time, Vermont has regulated groundwater withdrawals for drinking including, as of 2005, withdrawals for bottled water based on reasonable use.
The current regulatory system is inadequate, however. No one is charged with reviewing the impact of groundwater withdrawals for non-drinking water uses by projects that do not trigger Act 250 jurisdiction. Even when non-drinking water is withdrawn by projects subject to Act 250 jurisdiction, for example irrigation at golf courses, the State does not review the impact of the withdrawal on neighboring wells.
S.304 seeks to fill in this gap by regulating groundwater withdrawals large enough to affect others (over 57,600 gallons per day, which equals a rate of 40 gallons per minute over a 24-hour period). Agricultural and existing uses are excepted from this permitting requirement. At first, I questioned whether the proposed permitting standards were sufficiently specific. Well-respected hydrogeologists testified without opposition before our Committee that regulations can be written that clearly define how the permitting standards will be applied. These regulations will be drafted under the Governor’s purview and the Legislature will review them prior to their adoption.
In most cases, demonstrating compliance with the new permitting standards will not cost more than the current standards for withdrawing drinking water, except that the new standards include additional consideration for withdrawals affecting wetlands. The hydrogeologists who testified before our Committee agreed, however, that a regulation could be written that substantially reduced this cost for most users, as for example, when a proposed withdrawal will obviously have no impact on significant wetlands.
The goal of S.304 is to equalize the treatment of ground and surface water by applying the public trust doctrine to groundwater, similar to about half the states in America. As recommended by our Committee, S.304 contains a specific declaration that the public trust doctrine does not affect legal access to groundwater including, for example, deeded spring rights. Our Committee also proposes to clarify that the public trust doctrine may be used only to protect the particularized interests of individuals. In other words, you may be able to sue to prevent water withdrawals affecting your well, but you cannot use the doctrine to oppose water withdrawals by larger retailers by, for example, basing such opposition on a claim that their employment practices are not in the public interest.
In sum, S.304 is a necessary and good bill that should be passed and signed this year.
Jon Anderson (D-Montpelier) is a member of the Fish, Wildlife and Water Resources Committee and practices land use and environmental law at Burak Anderson & Melloni, PLC.
Current Projects
Here is a summary of what the legislature did in 2007
Montpelier Multi-Modal Transit and Welcome Center and Parking Structure Project Brief
A Solution to the Problem of Tires in the Woods and the Rivers
Briefing memo to the democratic caucus from Jon Anderson
Letter to Central Vermont Solid
Waste District from Jan Anderson
Letter to Fellow Vermonters about the Tire Bill
"Opprotunities for Participation, Discussion and Observation" Chart
"How an Idea Becomes Law (Hopefully)"
Commentaries and Articles by Jon
"Legislature’s energy efficiency program is important, a veto override is needed" Times Argus Commentary June 13, 2007
General Articles
"Success in Vermont Schools a snapshot of public education in Vermont from VSA, VPA & VSBA"
Bridge Article about the Tire Issue
Newsletters
January 14, 2008
