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BILL AS INTRODUCED 2007-2008

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S.304

Introduced by   Senator Snelling of Chittenden District, Senator Bartlett of Lamoille District, Senator Lyons of Chittenden District and Senator McCormack of Windsor District

Referred to Committee on

Date:

Subject:  Conservation and development; groundwater protection; groundwater withdrawal

Statement of purpose:  This bill proposes to declare the groundwater resources of the state to be a public trust resource and to implement a groundwater withdrawal permit program.  Any person withdrawing more than 10,000 gallons per day or more than 300,000 gallons of water over any 30-day period, at a single real property or place of business prior to July 1, 2008, would be required to register with the secretary of natural resources.  After July 1, 2008, any person withdrawing more than 50,000 gallons of groundwater a day from a well or wells drilled at a single real property or place of business would be required to obtain a permit from the agency of natural resources when the groundwater withdrawn would be used for industrial or commercial purposes.  A permit would also be required for the bottling or removal of water from a spring for commercial or industrial purposes at a single real property or place of business after July 1, 2008.  The bill would also establish a public trust cause of action to protect groundwater.

AN ACT RELATING TO A GROUNDWATER WITHDRAWAL PERMIT PROGRAM

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  10 V.S.A. chapter 48, subchapter 5 is amended to read:

Subchapter 5.  Interim Groundwater Withdrawal Permit Program

§ 1415.  INTERIM GROUNDWATER WITHDRAWAL PERMIT POLICY

(a)  As used in this section:

(1)  "Groundwater" means water below the land surface.

(2)  "Person" means any individual, partnership, company, corporation, cooperative, association, unincorporated association, joint venture, trust, the state of Vermont or any department, agency, subdivision, or municipality, the United States government or any department, agency, or subdivision, or any other legal or commercial entity.

(3)  "Withdraw" means the removal of groundwater by any method or instrument.

(b)  No person shall withdraw more than 50,000 gallons of groundwater a day from a well drilled after July 1, 2006, for commercial or industrial purposes without first receiving from the secretary of natural resources an interim groundwater withdrawal permit under this section.  Prior to issuance of a permit under this section:

(1)  The secretary shall determine that such withdrawal meets the applicable requirements of section 1675 of this title and any applicable rules adopted thereunder or the requirements adopted pursuant to subsection (e) of this section; and

(2)  the applicant shall submit to the Vermont state geologist and the department of environmental conservation a geologic cross section and groundwater contour map of an area, the size of which shall be in conformance with appendix A, part 3, subsection 3.3.5.2 of the Vermont water supply rule, surrounding the proposed source of the groundwater withdrawal.

(c)  Groundwater withdrawal by a public water system, as that term is defined in section 1671 of this title, or for use for fire safety, agriculture, agricultural or dairy processing, dewatering operations during building construction, geothermal energy production, or public sanitation shall be exempt from the requirements of this section.

(d)  A permit issued under this section shall be valid for the period of time specified in the permit but not more than five years.

(e)  The secretary of natural resources may adopt rules to implement the provisions of this section and to establish criteria for the issuance of a permit under section 1675 of this title for commercial or industrial groundwater withdrawals from a well drilled after July 1, 2006 In recognition that the groundwater of Vermont is a precious, finite, and invaluable resource upon which there is an ever-increasing demand for present, new, and competing uses; and in further recognition that an adequate supply of groundwater for domestic, agricultural, and industrial use is essential to the health, safety, and welfare of the people of Vermont, it is found and declared that the withdrawal of groundwater of the state shall be permitted only when such withdrawal is found to be necessary, in the public good, is compatible with long-range water resource planning, proper management, and use of the water resources of Vermont, and is consistent with Vermont’s policy of managing groundwater as a public resource for the benefit of all Vermonters.

(b)  Consistent with the policy of this section and sections 1390 and 1392 of this title, groundwater is hereby declared to be a public trust resource.  

§ 1416.  DEFINITIONS

As used in this section:

(1)  "Groundwater" means water below the land surface.

(2)  "Natural resources” means groundwater, surface water, springs, wetlands, vernal pools, rare and irreplaceable natural areas, and endangered species. 

(3)  "Person" means any individual, partnership, company, corporation, cooperative, association, unincorporated association, joint venture, trust, the state of Vermont or any department, agency, subdivision, or municipality, the United States government or any department, agency, or subdivision, or any other legal or commercial entity.

(4)  “Public good” means that which shall be for the greatest benefit of the people of the state of Vermont.

(5)  “Spring” means a groundwater source entirely dependent on gravity to move water from the source to the distribution system.

(6)  “Surface water” means waters within the meaning of subdivision 1251(13) of this title.

(7)  "Withdraw" means the removal of groundwater by any method or instrument, including the bottling or removal of water from a spring.

§ 1417.  EXISTING GROUNDWATER WITHDRAWAL; REPORTING

Any person maintaining a withdrawal of more than 10,000 gallons per day, averaged over any seven-day period, or more than 300,000 gallons of water over any 30-day period, at a single real property or place of business prior to July 1, 2008, shall register on or before July 1, 2009, with the secretary of natural resources, on a form prescribed the secretary, the location, capacity, frequency rate of the withdrawal, a description of the use of the withdrawal,  and, where feasible, the distance of each withdrawal from the nearest surface water source.  A person maintaining a withdrawal exclusively for farming, as that term is defined in subdivision 6001(22) of this title, may report estimated water use for the reporting period.  Any withdrawal which is not registered may be subject to the permit requirements of subdivision 1418 of this title.  The following are exempt from the reporting requirements of this section:

(1)  A groundwater withdrawal for fire suppression or other public emergency purposes;

(2)  A withdrawal reported to the agency of natural resources under any program that requires the reporting of substantially similar data.  The agency of natural resources shall record such withdrawals with the information from withdrawals reported under this section; and

(3)  Ordinary household use.

§ 1418.  GROUNDWATER WITHDRAWAL PERMIT

(a)  As of July 1, 2008, no person, for commercial or industrial purposes, shall withdraw more than 50,000 gallons of groundwater a day from a well or wells drilled at a single real property or place of business or remove more than 50,000 gallons a day for bottling from a spring at a single real property or place of business without first receiving from the secretary of natural resources a groundwater withdrawal permit.  The expansion of any existing withdrawal of over 50,000 gallons per day that is in existence prior to July 1, 2008 or the expansion of a withdrawal of over 50,000 gallons per day that is in existence prior to July 1, 2008, such that the new withdrawal exceeds 50,000 gallons per day, requires a permit under this section.  In addition, any existing withdrawal for use as bulk or bottled water for sale as a consumer product, such that the withdrawal exceeds 50,000 gallons per day, requires a permit under this section. 

(b)  The secretary shall adopt rules that govern withdrawals of 50,000 gallons per day or more under this section.  Until such rules are adopted and are in effect, there shall be a moratorium on new and expanded withdrawals of more than 50,000 gallons per day except for withdrawals for agricultural uses and public water supplies that are permitted pursuant to chapter 56 of this title and any applicable rules of the agency of natural resources.  Rules adopted by the secretary shall include the following provisions:

(1)  An applicant for a withdrawal under this section shall notify:

(A)  the municipality in which the proposed withdrawal is located;

(B)  municipalities that adjoin the municipality in which the proposed withdrawal is located;

(C)  the regional planning commission in the region where the proposed withdrawal is located;

(D)  all landowners and residents adjoining the proposed withdrawal site; and

(E)  any water systems permitted by the agency of natural resources in the municipality where the proposed withdrawal is located. 

(2)  An application for a withdrawal under this section shall not be deemed complete by the agency of natural resources until 120 days following the date that notice is provided pursuant to subdivision (1) of this subsection and an applicant files a summary of its response to any comments received following the required notification.

(3)  An application for a proposed withdrawal shall include:

(A)  the need for the withdrawal;

(B)  the reason for the withdrawal and the use of the water;

(C)  the location of the withdrawal;

(D)  the quantity, frequency, and rate of the withdrawal; and

(E)  the alternatives to the proposed withdrawal, including a study of cost factors, feasibility, and whether there is an alternative to the proposed withdrawal that has less of an environmental impact.

(4)  In order to be approved by the agency of natural resources, an applicant for a withdrawal under this section has the burden to prove that the proposed withdrawal:

(A)  Will not have an adverse affect on the public good and is consistent with the state policy to manage groundwater as a public resource for the benefit of all citizens of the state.  In determining whether the withdrawal will have an adverse effect on the public good, review by the agency of natural resources shall include the effect of the proposed withdrawal as well as the cumulative effect of existing withdrawals on:  natural resources; existing uses of water for farming and public water systems; whether the proposed withdrawal conforms with any applicable state, regional, and municipal plan; and whether the withdrawal is compatible with the policies and programs of the state of Vermont regarding long-range planning, management allocation, and use of groundwater and surface water.  In determining whether a proposed withdrawal is in the public good, the agency of natural resources shall consider the proposed use of the water.  For the purposes of this section, withdrawals for public water supplies and agricultural uses shall be presumed to be in the public good and have priority over commercial and industrial uses and proposed withdrawals for use as bulk or bottled water for sale as a consumer product.

(B)  Will not have an adverse effect on existing domestic wells that are hydrologically connected to the proposed withdrawal.

(C)  Will not have an adverse effect on a water system permitted by the agency of natural resources and any potential future public water systems.

(D)  Will not have an adverse effect on an agricultural use of water.

(E)  Will not have an adverse effect on wetlands and surface water.

(F)  Will not have an adverse effect, including thermal effect, on fish and wildlife as a result of flow reduction, alteration, or augmentation caused by the proposed withdrawal.  

(5)  An applicant for a proposed withdrawal that removes water from a watershed, including a withdrawal for use as bulk or bottled water for sale as a consumer product, has the burden to prove that the transfer of water from the withdrawal out of the watershed will not have an adverse impact on the factors set forth in subdivision (3) of this subsection.

Sec. 2.  10 V.S.A. § 1416 is added to read:

§ 1419.  PUBLIC TRUST CAUSE OF ACTION

(a)  Any person may bring an action for equitable relief or an action in tort to recover damages, or both, for violation of the public trust in groundwater by another person withdrawing, diverting, or altering the character or quality of groundwater.  A person bringing a cause of action under this section shall have standing to sue.  Factors to be considered in determining whether the public trust has been violated shall include:

(1)  the effect of the proposed withdrawal, alteration, or diversion on natural resources and existing uses of water for farming and public water systems.  The effect of the proposed withdrawal, alteration, or diversion shall include the cumulative effect of the proposed action in combination with existing withdrawals, alterations, or diversions;

(2)  whether the proposed withdrawal conforms with any applicable state, regional, or municipal plan; and

(3)  whether the withdrawal is compatible with the policies and programs of the state of Vermont regarding long-range planning, management allocation, use of groundwater and surface water, and management of groundwater as a public resource for the benefit of all citizens of the state.

(b)  Nothing in this section shall be construed to preclude or supplant any other statutory or common-law remedies, except that no common-law cause of action exists for violating the public trust in groundwater.

Sec. 3.  10 V.S.A. § 1410 is amended to read:

§ 1410.  GROUNDWATER; RIGHT OF ACTION

(a)  Findings and policy.  The general assembly hereby finds and declares that:

(1)  surface and subsurface water are inherently interrelated in both quality and quantity;

(2)  groundwater hydrology is a science that allows groundwater quality and quantity to be mapped and forecast;

(3)  groundwater is a mobile resource that is necessarily shared among all users;

(4)  all persons have a right to the beneficial use and enjoyment of groundwater free from unreasonable interference by other persons; and

(5)  it is the policy of the state that the common-law doctrine of absolute ownership of groundwater is hereby abolished; and

(6)  it is the policy of the state that the groundwater resources of the state are held in trust for the public, and the state shall manage the groundwater resource of the state for the public trust and interest.

(b)  Definitions.

(1)  "Groundwater" means water below the land surface.

(2)  "Surface water" means any water on the land surface.

(3)  "Person" means any individual, partnership, company, corporation, association, unincorporated association, joint venture, trust, municipality, the state of Vermont, or any agency, department, or subdivision of the state, federal agency, or any other legal or commercial entity.

(c)  Any person may maintain under this section an action for equitable relief or an action in tort to recover damages, or both, for the unreasonable harm caused by another person withdrawing, diverting or altering the character or quality of groundwater.

(d)  Notwithstanding the provisions of subsection (c) of this section, a person who alters groundwater quality or character as a result of agricultural or silvicultural activities, or other activities regulated by the secretary of agriculture, food and markets, shall be liable only if that alteration was either negligent, reckless or intentional.

(e)  Factors to be considered in determining the unreasonableness of any harm referred to in subsection (c), above of this section, shall include, but need not be limited to, the following:

(1)  the purpose of the respective uses or activities affected;

(2)  the economic, social, and environmental value of the respective uses, including protection of public health;

(3)  the nature and extent of the harm caused, if any;

(4)  the practicality of avoiding the harm, if any;

(5)  the practicality of adjusting the quantity or quality of water used or affected and the method of use by each party;

(6)  the maintenance or improvement of groundwater and surface water quality;

(7)  the protection of existing values of land, investments, enterprises and productive uses;

(8)  the burden and fairness of requiring a person who causes harm to bear the loss; and

(9)  the burden and fairness of requiring a person to bear the loss, who causes harm in the conduct of reasonable agricultural activities, utilizing good agricultural practices conducted in conformity with federal, state and local laws and regulations.

(f)  Nothing in this section shall be construed to preclude or supplant any other statutory or common-law remedies, except that no common law cause of action exists for violating the public trust in groundwater.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us