Committee says ground water shouldn’t be declared public resource

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(Host) A legislative study committee has recommended against declaring the state’s ground water a public resource owned by all Vermonters.

But the panel agreed that the Legislature needs to do more to protect the state’s water supplies.

VPR’s John Dillon reports:

(Dillon) The most controversial issue before the groundwater committee centered around a legal concept that dates back to ancient Rome.

It’s called the Public Trust Doctrine. It’s the legal theory that most waterways – primarily those that can be navigated – belong to everyone, and are held in trust for the public.

For about a century, Vermont law has recognized the concept of the public trust when it comes to surface waters, such as lakes and rivers.

The debate was over whether that legal protection should be extended to groundwater – the underground aquifers that most Vermonters rely on.

Jon Groveman, a lawyer with the Vermont Natural Resources Council, argued for the public trust doctrine at the final meeting of the groundwater study committee.

(Groveman) "To me this issue is really common sense. Water moves through property. It’s not static. Water doesn’t lend itself to private ownership. You could tap into it in one place. It’s moving onto someplace else. It’s clearly a shared resource. It’s a precious resource. It’s a finite resource. We’re not making any more water. This designation would just recognize the public nature of water.”

(Dillon) Advocates of putting groundwater in the public trust point to the increased pressure on the resource. Bottled water companies have tapped aquifers in Vermont for commercial use. And the committee heard testimony about wells going dry in some towns due to heavy water withdrawals on neighboring property.

Westminster Representative David Deen chairs the House Fish Wildlife and Water Resources Committee.

He says the public trust doctrine would add another layer of protection for people who rely on groundwater. He says under current law, he would have to file a lawsuit if his groundwater supplies were depleted by someone else.

(Deen) "Why should I have to go to court to protect my groundwater rights? The agency should be held responsible to protect my right, and that’s the elevation that I see happening if it gets public trust resource designation.”

(Dillon) But panel ended up rejecting the public trust idea. Farm interests were against the concept, and the committee included four members with ties to agriculture. All three members from the Douglas Administration were against it, as were most of the other members appointed by the governor.

William Driscoll is vice president of Associated Industries of Vermont and represented business on the committee. He was concerned that the public trust declaration could lead to lawsuits and legal uncertainty about who owns the water.

(Driscoll) "It really seems to be unwarranted to invite that conflict or uncertainty when in fact we could just simply go ahead and if necessary make whatever statutory or regulatory adjustments as we go forward.”

(Dillon) The committee action won’t be the last word. Several lawmakers on the panel said they will support public trust legislation. And most committee members recognized the need to strengthen state regulation of groundwater.

For VPR News, I’m John Dillon.


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