VEC News Blog
February 2017

WHAT DOES IT MEAN THAT GROUNDWATER IS WITHIN THE PUBLIC TRUST?

 
Until 1985, Vermont followed the common law rule for groundwater rights under which a property owner held absolute ownership of groundwater under the surface of their property subject to reasonable state regulation.  Then in 1985, the Legislature passed 10 V.S.A. ยง 1410, which abolished the doctrine of absolute ownership of groundwater and instead adopted as state policy the right of all persons to the beneficial use and enjoyment of groundwater free from unreasonable interference by other persons.  This issue remained in the background for the next 20 years, until Legislature passed Act 144 in 2006, which created a 2-year study committee, which led to Act 199 of 2008.
 
Act 199 established a permitting and reporting program at the agency of natural resources (ANR) for large scale (>20,000 gallons per day) groundwater withdrawals.  The act also declared groundwater to be a public trust resource that shall be managed for the benefit of state citizens. The Act presumes that groundwater withdrawal complies with public trust requirements if used for farming, domestic use, a permitted public water system, a permitted potable water supply, dairy processing, or is permitted under the new permit program established by Act 199.  This Act guided the ANR's management with regard to groundwater quantity, but did not set requirements for groundwater quality.

 
 


Act 199 was tested and found legitimate under the VT Constitution by what is known as to Omya decision. Omya, which operates a calcium carbonate processing facility, applied for a solid waste certification from the ANR for their tailings disposal facility. Even though groundwater underneath the property had elevated levels of iron, manganese, arsenic, and a flotation reagent called aminoethylethanolamine (AEEA), ANR granted Omya's application for a final certification based on the requirements set forth in the 2005 Groundwater Protection Rule and Strategy. A group appealed the decision, claiming concerns about the tailings disposal facility and groundwater quality. The Vermont Superior Court determined (No. 96-6-10 Vtec) that ANR's 2005 Rules had not specifically considered groundwater as within the public trust and therefore must be revisited, and also ruled that groundwater must be managed as a public trust resource with regard to not just the quantity of groundwater, but also to the quality of groundwater.

How has this affected the Vermont consulting and engineering community? The ANR is in the process of revising the Groundwater Protection Rule and Strategy ("Rule'), which may have more stringent groundwater quality enforcement standards with implications on compliance of existing uses and limitations on proposed uses. Many existing ANR rules and guidelines make reference to the Rule, so these will also need to be updated to reflect the public trust principles. Also, since groundwater and surface water are now recognized as a single resource system, this will mean the compliance issues will extend into surface water uses.

To learn more about the pending Rule changes, please come to the VEC's Spring Conference (http://www.vectogether.org/vec-events/spring-conference/) on May 25, 2017.

Contributed by Miles E. Waite, PhD, PG
Senior Hydrogeologist
Waite-Heindel Environmental Management
VEC President

VEC Board Members Govern and Lead
Miles Waite, VEC President,  Waite-Heindel Environmental Management, Exec. Comm.
Shaun Fielder, VEC Vice President,  Vermont Rural Water Association, Exec. Comm.
Melissa Levy, VEC Secretary,  Community Roots, Exec. Comm.
Tom Broido, VEC Treasurer,  ATC Group Services, Exec. Comm.
Jill Michaels,  Community Investments
Dan Voisin,  Stone Environmental
Joan Richmond-Hall, Ph.D.,  Vermont Technical College
Joseph Hayes,  ATC Group Services
Curt Carter,  Greater Burlington Industrial Corporation
Geoff Hand,  Dunkiel Saunders Elliott Raubvogel & Hand
Peter Murray,  Geotech Environmental Equipment
Jack Byrne,  Middlebury College
Michael Stafford,  Staff Sterling Management
Susan McMahon,  Windham Regional Commission
Kurt Muller,  The Johnson Company
Ron Shems,  Diamond & Robinson, PC
William Scott Buckley, Keller Williams Realty
Martha Roy,  The Verterre Group/Subterra Locating Services
Tara Kulkarni, Norwich University 
Jared Duval,  Vermont Department of Economic Development