Groundwater Rising

Last May, the East Montpelier Selectboard met with Daniel Antonovich, the chief executive officer of a new water-bottling company. Antonovich was pitching a plan to extract and sell an unspecified amount of water from a spring on land he owns, exactly 2.9 miles from the Vermont State House. He estimated the Montpelier Spring Water Company would gross $25 million over the first three years in business.

According to a memorandum prepared by Antonovich, a New Jersey resident who reportedly spends weekends in East Montpelier, the operation would necessitate laying a few miles of pipeline and building a bottling facility in neighboring Montpelier. His business plan included letters of support from Lieutenant Governor Brian Dubie and former Governor Howard Dean.

“I am aware of the hard work that lies ahead to make this dream a reality,” Dean wrote Antonovich back in 1995, “but I want to wish you good luck and continued success in the future.”

When Carolyn Shapiro, a teacher and artist who lives about a mile from the spring, read about Antonovich’s plans in a local newspaper, she wasn’t nearly as enthusiastic.

“I thought, ‘Oh, my gosh! They’re talking about something here on North Street,’” she recalls. “That’s when I began talking to neighbors to see who knew what. And nobody knew much at all.” Except, perhaps, the chair of the East Montpelier Select-board. Tom Brazier, Shapiro notes, is listed in municipal meeting minutes from November 2007 as a “project consultant” for the Montpelier Spring Water Company. Shapiro sees that as a potential conflict of interest.

Shapiro wanted the Selectboard to set up a public meeting to discuss Antonovich’s proposal, but nothing happened. Finally, in January 2008, Shapiro and dozens of other residents gathered in a classroom at Montpelier’s U-32 High School. Among the questions they wanted answered: How many private companies are bottling Vermont spring water across the state? And could Vermont — a pretty aqueous place — erupt into conflict over water rights?

“All of these questions are ones I really want to explore,” Shapiro told the audience, “but I didn’t want to explore them myself.”

Antonovich was invited to the meeting, but chose not to attend (he also declined to speak on the record for this story). A local farmer spoke on his behalf. David Sparrow, whose family owns property near Antonovich’s, reminded attendees that the world-famous Perrier [1] franchise had expressed interest in buying the land 17 years ago. The company was talking about pumping 700,000 gallons of water from the spring each day, Sparrow said — much more than Antonovich is currently proposing.

Sparrow said, “The only amount of water he was planning on taking . . . is probably less than a third of the total amount in the spring house.”

That hardly reassured Shapiro. She went on to lead a petition drive to get a question on next week’s Town Meeting ballot that would limit local groundwater extraction to less than 10,000 gallons a day. According to the nonprofit advocacy organization Vermont Natural Resources Council [2] (VNRC), the proposed moratorium is the first of its kind in the state.

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The story of Montpelier Spring Water Company represents a drop in the bucket of the burgeoning water-bottling business. The U.S. bottled-water industry [3] is worth $11 billion per year; it grew almost 10 percent between 2005 and 2006. Bottling water is much cleaner than other extractive industries, such as coal mining, and is a potential source of jobs. But it’s also a growing source of tension between corporate ambition [4] and environmental responsibility [5].

It’s hard to say how many water-bottling companies are operating in Vermont, let alone what they’re up to. Unlike New York [6], the state doesn’t maintain a searchable registry of water bottlers. The Public Service Board [7] keeps a “water company” registry, but it includes “plumbing and heating” companies and an “aqueduct society.” The Secretary of State [8] recognizes water bottling as a corporate descriptor, but clerks can only search the agency’s database by company name.

Seven Days attempted to obtain information about the state’s role in overseeing water extraction from the Agency of Natural Resources’ (ANR) Water Supply Division [9], but the agency declined to make anyone available to answer questions (see sidebar) [10].

It’s clear, however, that large amounts of water are being extracted from the state’s aquifers. Citing the U.S. Geological Survey [11], a Vermont Journal of Environmental Law (VJEC) paper [12] reports that Vermonters pumped 43 million gallons of groundwater per day in 2000 — roughly the equivalent [13] of 7 million toilet flushes, or 1.5 million loads of laundry.

The water companies profiled for this story, however, insist they’re not bottling groundwater, but “naturally overflowing” water from beneath the surface. “Artesian” is another favorite term. The allegation is that the water is being “collected,” not pumped, and therefore not subject to rules and regulations governing groundwater.

That’s a subject for debate. The VJEL article notes that most of the state’s groundwater lives in “crystalline rock aquifers” — impermeable formations of gneiss and schist. Eighty percent of privately drilled well water flows from these crystalline formations. The other 20 percent flows from sand- and gravel-based “stratified drift” aquifers. While stratified drift aquifers “are under more direct influence by surface water” than crystalline ones, “practically all surface waters interact with the groundwater in some way.”

Current state law distinguishes between groundwater and “surface” water, which is held in the “public trust” — shorthand for “publicly owned.” But that’s a false distinction, according to University of Vermont professor Donna Rizzo [14]. “From a scientific point of view, there is no difference between groundwater and surface water,” says Rizzo, a civil and environmental engineer who did her PhD dissertation on groundwater conflicts. “That’s the beautiful part about the hydrologic cycle.”

The ugly part? The professor cautions that East Coasters are just beginning to “fight” over water the way they have been battling over it for years in places such as Arizona, Colorado and Southern California.

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Vermonters get two-thirds of their drinking water from the ground, but there’s been no official comprehensive mapping of it — yet. Last year, Rep. David Deen who chairs the House Committee on Fish, Wildlife & Water Resources, was a member of a governor-appointed committee studying groundwater issues. The Democrat from Westminster was a strong advocate for granting groundwater a “public trust” designation. At least 15 states nationwide, including New Hampshire, Maine, Connecticut and New Jersey, have already gone that route.

While Vermont law recognizes that surface water — lakes, streams, vernal pools — are owned by all of us, the state still regulates groundwater according to a doctrine of “correlative rights,” [15] which limits withdrawal to “quantity of available water in the aquifer and one’s need for its use.”

Deen wanted to strengthen the groundwater guidelines by removing control over extraction from landowners and giving it to the state. He lost.

But his argument is back on the table — this time, in the Vermont Senate. State lawmakers are currently considering a bill that would give Vermont’s groundwater a “public trust” designation. Senate bill 304 [16] would mean stricter regulations: New groundwater users would need permits to extract more than 50,000 gallons per day; existing users would need permits for extractions of more than 150,000 gallons.

Supporters of S.304 say the bill is a smart application of the precautionary principle. Since we don’t know enough about the state’s groundwater, the thinking goes, why not protect it?

Randolph Center resident Joan Sax brought that perspective to a Senate committee hearing in late January. The 68-year-old lives a few miles from the spring sites of ClearSource [17], formerly owned by Vermont Pure Springs [18], which still operates a bottling plant in White River Junction. ClearSource employs 65 full-time workers plus seasonal staff at a Randolph plant. In 2004, Sax suspected the company’s operations were having a negative impact on Blaisdell Brook, a primo-grade site for trout fishing.

She came to that conclusion because in November 2002, when Vermont Pure still owned the operation, the Agency of Natural Resources proposed downgrading the brook’s “B1” rating — signifying a high-quality waterway — to a B3, presumably to reduce the oversight of the brook’s use.

A series of ANR emails in late 2002 — weighing the rating options and their impact on Vermont Pure — bolsters Sax’s contention that the state agency is too industry-friendly and doesn’t provide enough oversight of bottled-water companies. Back in January, Sax told Carolyn Shapiro and her neighbors that they needed to “ask some really hard questions” about the Montpelier Spring Water Company project before it goes forward.

“The questions you have to ask” she said, “are: If things change, what will this imply for the community? Who’s regulating? How much water is leaving the site? Who’s checking that? And what effect will there be on local streams? Without a better idea of that, you may end up with no wells. And if we have no water, we cannot sell our homes.”

Jon Groveman, the chief architect of S.304, agrees. An attorney who directs VNRC’s water program, he says the state’s water-quantity laws are much weaker than its regulations regarding water quality, which he characterizes as “decent.”

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Not surprisingly, water bottlers have an altogether different view of a bill that would restrict how much H20 they could draw from private land. Ron Colton, the president of Pristine Mountain Springs in Stockbridge, currently has contracts [19] to sell at least 333,000 gallons of groundwater per day to area bottlers. Colton says his current operations employ six truckers, plus “20 or 30” factory workers at Vermont Pure’s White River Junction bottling facility.

He maintains that, unlike oil, there’s no shortage of water in Vermont — there’s “more than anyone in Vermont would ever need or be able to use anyway,” he says.

“I need to be able to take hundreds of thousands of gallons a day to stay in business,” Colton asserts. “If the water doesn’t flow naturally out of the ground, I’m not going to be able to sell it, so I’m at the mercy of Mother Nature as to the amount I can sell.”

Last year, an environmental group called Vermonters for a Clean Environment [20] asked ANR to investigate the presence of septic tanks around Colton’s spring. Colton admitted as much — there were “one or two” septic tanks within 200 feet of his facility, which was constructed in the 1960s — but he contends the water source is protected by a buffer zone of “impervious clay.” If his water was contaminated, he says, Vermont Pure scientists would have discovered it. Vermont Pure didn’t return repeated phone calls.

Jay Land, CEO of the Pennsylvania corporation [21] that owns ClearSource, agrees with Colton that additional regulation would be a burden on the bottled-water industry. In September, ClearSource inadvertently withdrew 4000 gallons of groundwater from its springs even though Blaisdell Brook was running low, a violation of state law. The company itself reported the infraction to the state.

Earlier this month, the state issued a revised Act 250 permit to ClearSource, limiting to 60 the number of times trucks can fill up at the company’s springs each day. That effectively limits the company’s maximum daily water withdrawal to roughly 498,000 gallons a day. While Joan Sax, who hears ClearSource trucks from her home, thinks the ruling is “terrific,” Land claims he will have to cut weekend work hours for his employees.

Land and Colton are joined in their opposition to S.304 by lobbyists for the bottled-water industry. Andrew MacLean, representing the International Bottled Water Association [22] (IBWA), told Vermont legislators earlier this year that Vermont’s proposed law would introduce a “litigious aspect” that “doesn’t need to be there” and would “swamp” ANR staff. IBWA figures indicate that bottled water constitutes less than .02 percent of total groundwater withdrawal in the United States.

William Driscoll, a lobbyist for Associated Industries of Vermont [23], told lawmakers that his organization supports efforts to map the state’s groundwater, but objects to “a permanent reporting requirement.”

Driscoll proposes a new survey of groundwater resources, rather than a stricter regulatory scheme. He thinks S.304, in its current form, unfairly presumes large water users to be “guilty” of violations.

But the bill’s chief proponent, VNRC’s Groveman, says Driscoll’s arguments are disingenuous. “It really frustrates me when these industry groups, who like this chaos, end up with weak permit conditions,” Groveman says. “They get government into the position of being apologists for the companies.” Driscoll returned a phone call after deadline.

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Joan Sax is very attuned to the growing conflict over water in Vermont. On a recent afternoon in Randolph, she leads the way to the source. She hops in her truck, drives a few hundreds yards east, and takes a left on a gravel road. After crossing the Blaisdell Brook, she parks beside a small, unassuming wooden shed and kills her engine.

The shed — which looks like a large outhouse — is locked, but it contains one of ClearSource’s two springs. There are no visible pipes around it, nor corporate logos. A notice beside the door reads, “CRIME: DON’T TRY IT! YOU’RE ON VIDEOCAMERA.”

Later, over a cup of tea at her kitchen table, Sax sums up the conflict: “If you are a business, you don’t want the state coming after you,” she explains, “and if you’re an individual citizen, you want the state to help you out.”

It can get complicated, though. Sax recalls several years ago Development Review Board members in Randolph spoke with local water bottlers despite owning stock in a bottled-water company.

The Montpelier Spring Water Company situation is fraught with similar conflicts. Former Vermont Agriculture Secretary Steve Kerr has been a public supporter [24] of the project. And Tom Brazier, the chair of the East Montpelier Selectboard, is listed as “project manager” for the Montpelier Spring Water Company. Brazier did not return numerous phone calls seeking comment.

“It’s an interesting point in Vermont political history,” says Sax, taking a sip of tea. “It used to be that conflict of interest wasn’t an issue — you go into a small town, and everyone’s involved in a small way.

“But with big business coming in, you have to be careful.”