Groundwater Moratorium Unearths Legal Uncertainties

Citizen activist Carolyn Shapiro woke up on the Wednesday after Election Day with renewed faith in local democracy. The previous evening, at East Montpelier’s annual town meeting, her neighbors approved a referendum calling for what may be Vermont’s first-ever municipal moratorium on groundwater extraction.

The measure, passed by a resounding voice vote, prohibits any “person, partnership, corporation or syndicate” — in other words, any non-farmer — from extracting more than 10,000 gallons of groundwater per day. The referendum was prompted by growing concern [1] over a local spring water company’s plan to tap an East Montpelier spring and how it would affect the town’s watershed.

But one clause of the referendum — that the East Montpelier Selectboard will “take all steps necessary to realize” the moratorium’s “intent” — raises another question: Do municipal moratoriums on groundwater extraction hold, well, water?

Probably not, says Scott Stewart, a hydrogeologist with the water-supply division [2] of the Agency of Natural Resources (ANR). Stewart says the state’s water-supply permitting procedures trump local ordinances. Nor, he says, would S.304 [3], a state Senate bill that proposes enforceable limits on groundwater extraction, have much effect on bottled-water companies. If passed, S.304 would only change the way ANR deals with “non-consumptive uses” of groundwater, he says, for activities such as snowmaking and groundskeeping.

“If they were up and running,” Stewart says of Montpelier Spring Water Company, “they’d be dealing with our compliance section and working under an operating permit that would tell them, ‘They’re doing fine,’ or ‘Here are a bunch of things they need to fix within whatever time frame.’ Those are enforceable milestones.”

According to Stewart, nine bottled water companies have licenses to operate in Vermont. Only three, however, have recently submitted compliance data required by the state, including how many gallons the companies are withdrawing each month. Nonetheless, Stuart maintains, the state is addressing such noncompliance “in some level of detail,” such as by writing letters to point out that “X, Y and Z things are wrong.”

Shapiro says it is that kind of regulatory inconsistency that East Montpelier’s moratorium is intended to address. She says the moratorium won’t interfere with the state’s permitting process; it is, after all, a non-binding referendum. However, she and her neighbors would like the state’s groundwater regulations to be clearer. Her ad-hoc citizens’ group is meeting this week to hash out their next course of action.

Steve Jerome, a sixth-generation Vermonter who has served on the East Montpelier Selectboard for three years, says he doesn’t have an opinion on the wisdom of the moratorium or whether it is enforceable. “We haven’t had an attorney look at it yet,” Jerome says. “I’m thinking it will be a few weeks before this even comes up.”

Daniel Antonovich, chief executive officer of the Montpelier Spring Water Company, presented his bottling proposal to both the East Montpelier and Montpelier selectboards last year, but he has yet to file for a water-supply permit from the state. (The last time he filed one was 13 years ago.)

If Antonovich does move forward with his plans, he will likely be required to obtain an Act 250 permit [4] before constructing water pipelines — a process that’s regulated by the state’s Natural Resources Board [5]. NRB attorney John Hasen isn’t sure what effect the moratorium will have on the Act 250 application process.

“Whether or not this moratorium is legal or valid, I don’t know,” Hasen says. “If people abide by it . . . then we won’t get any permit applications.”

Hasen, who has been dealing with Act 250 issues for 22 years, says there isn’t much case law on groundwater conflicts between disgruntled citizens and water-extracting corporations. No previous Act 250 case on groundwater, for example, has reached the Vermont Supreme Court.

“If you get three groundwater experts in a room,” he says, only half-jokingly, “you’ll get four opinions as to what will happen when a well gets drilled.”

Hasen, as it turns out, has been to the mountain. In 2005, a Vermont resident concerned about the impact on groundwater appealed an Act 250 application by a gravel company. The paucity of local precedent forced Hasen to refer to a case, more than 100 years earlier, involving the Houston & Texas Central Railway Company.

The Texas court concluded that groundwater was “so secret, occult, and concealed that an attempt to administer any set of legal rules . . . would be involved in hopeless uncertainty, and would, therefore, be practically impossible.”

“Groundwater is ‘occult,’” Hasen says with a chuckle. “Makes it sound like something out of Harry Potter.”