Download this document in MS Word format
BILL AS PASSED BY SENATE 2007-2008

AutoFill Template

S.304

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. § 1390 is amended to read:

§ 1390.  POLICY

It is the policy of the state of Vermont that it shall protect its groundwater resources to maintain high quality drinking water and shall manage its groundwater resources to minimize the risks of groundwater quality deterioration by limiting human activities that present unreasonable risks to the use classifications of groundwater in the vicinities of such activities while balancing the state's groundwater policy with the need to maintain and promote a healthy and prosperous agricultural community 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;

(5)  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, farming, and industrial uses is essential to the health, safety, and welfare of the people of Vermont, the withdrawal of groundwater of the state should be regulated in a manner that benefits the people of the state; 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;

(6)  it is the policy of the state that the state shall protect its groundwater resources to maintain high-quality drinking water;

(7)  it is the policy of the state that the groundwater resources of the state shall be managed to minimize the risks of groundwater quality deterioration by limiting human activities that present unreasonable risks to the use classifications of groundwater in the vicinities of such activities while balancing the state’s groundwater policy with the need to maintain and promote a healthy and prosperous agricultural community;

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

(9)  it is the policy of the state that the groundwater resources of the state are held in trust for the public.  The state shall manage its groundwater resources in accordance with the policy of this section and sections 1392 and 1418 of this title for the benefit of citizens who hold and share rights in such waters

Sec.  2.  10 V.S.A. chapter 48, subchapter 6 is added to read:

Subchapter 6.  Groundwater Withdrawal Program

§ 1416.  DEFINITIONS

As used in this subchapter:

(1)  “Farming” means farming as the term is defined in subdivision 6001(22) of this title.

(2)  “Groundwater” means water below the land surface, including springs.

(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)  “Spring” means a groundwater source where groundwater flows naturally to the surface of the earth, including any such groundwater intercepted via catchments or similar devices. 

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

(6)  “Water resources” means groundwater, surface water, and wetlands.

(7)  “Well” means any hole drilled, driven, bored, excavated, or created by similar method into the earth to locate, monitor, extract, or recharge groundwater where the water table or potentiometric surface is artificially lowered through pumping.

(8)  “Withdraw” or “withdrawal” means the intentional removal by any method or instrument of groundwater from a well, spring, or combination of wells or springs.

§ 1417.  EXISTING GROUNDWATER WITHDRAWAL; REPORTING

(a)  Any person that withdraws more than 20,000 gallons per day, averaged over any 30 consecutive-day period, at a single tract of land or place of business shall file a groundwater report with the secretary of natural resources on or before April 1 for the preceding calendar year.  The report shall be made on a form prescribed by the secretary and shall include:

(1)  the location, capacity, frequency, and rate of the withdrawal;

(2)  a description of the use of the water withdrawn; and

(3)  where feasible, the distance of each withdrawal from the nearest surface water source and wetland.

(b)  The agency of natural resources may require a withdrawal that is not reported as required under subsection (a) of this section to obtain a permit under section 1418 of this title.

(c)  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;

(3)  domestic, residential use;

(4)  groundwater withdrawal for farming;

(5)  public water systems, as that term is defined in section 1671 of this title; and

(6)  geothermal heat pumps used for residential heating.

(d)  The secretary of natural resources may adopt rules to implement this section, including methods for calculating or estimating the amount of groundwater withdrawn from a well or spring.


§ 1418.  GROUNDWATER WITHDRAWAL PERMIT

(a)  On and after July 1, 2010, no person, for commercial or industrial purposes, shall make a new or increased groundwater withdrawal of more than 57,600 gallons a day from any and all wells or springs on a single tract of land or at a place of business without first receiving from the secretary of natural resources a groundwater withdrawal permit.  The following shall constitute a “new or increased withdrawal”:

(1)  The expansion of any existing withdrawal through:

(A)  additional withdrawal from one or more new wells or springs; or

(B)  an increase in the rate of withdrawal from a well or spring above the maximum rate set forth in any existing permit issued by the secretary of natural resources under this section; or

(2)  For previously unpermitted withdrawals, an increase in the rate of withdrawal where the total withdrawal from all wells or springs on a single tract of land or at place of business exceeds 57,600 gallons per day.

(b)  The following are exempt from the permitting requirements of this section:

(1)  a groundwater withdrawal for fire suppression or other public emergency purpose;

(2)  domestic, residential use;

(3)  groundwater withdrawal for farming;

(4)  public water systems, as that term is defined in section 1671 of this title; and

(5)  geothermal heat pumps used for residential heating.

(c)(1)  On or before the date of filing with the secretary of natural resources an application for a permit under this section, an applicant for a withdrawal under this section shall notify:

(A)  the clerk, legislative body, and any conservation commission in 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 adjoining the proposed withdrawal site, including all residents of a mobile home park adjoining the proposed withdrawal site; and

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

(2)  The applicant shall publish notice of the application in a newspaper of general circulation in the area in which the withdrawal is proposed and shall post a copy of the notice in the municipal clerk’s office in the municipality in which the withdrawal is located.

(d)  The secretary may issue a permit under this section based on a review of the following:

(1)  the purpose for the withdrawal;

(2)  the location and source of the withdrawal;

(3)  the amount of the proposed withdrawal, including estimates of the projected mean and peak daily, monthly, and annual withdrawal;

(4)  the place of the proposed return flow of withdrawn water;

(5)  the estimated amount of water that will not be returned to the watershed where the proposed withdrawal is located;

(6)  the location, demand on, and yield of existing sources of groundwater and surface water utilized by the applicant;

(7)  a description of alternative means considered for satisfying the applicant’s stated use for water;

(8)  the applicant’s demonstration that the proposed withdrawal is planned in a fashion that provides for efficient use of the water, and will avoid or minimize the waste of water;

(9)  the applicant’s demonstration that the proposed withdrawal, in combination with other existing withdrawals, will meet the standards set by the secretary of natural resources in rule for establishing a safe yield;

(10)  the applicant’s demonstration that the proposed withdrawal is consistent with the town or regional plan in which the proposed withdrawal is located, and with any duly adopted state policy to manage groundwater as a shared resource for the benefit of all citizens of the state, including any policies and programs of the state of Vermont regarding long-range planning, management, allocation, and use of groundwater and surface water in effect at the time the application for the withdrawal is filed;

(11)  the applicant’s demonstration that the proposed withdrawal will not have an undue adverse effect on existing uses of water dependent on the same water source;

(12)  the applicant’s demonstration that the proposed withdrawal will not have an undue adverse effect on a public water system permitted by the agency of natural resources;

(13)  the applicant’s demonstration that the proposed withdrawal will not have an undue adverse effect on wetlands under the Vermont wetland rules or on other water resources hydrologically interconnected with the well or spring from which the proposed withdrawal would be made;

(14)  the applicant’s demonstration that the proposed withdrawal will not violate the Vermont water quality standards.

(e)  As a condition of a permit issued under this section, groundwater withdrawals from a well or spring for drinking water supplies or farming shall be given priority over other uses during times of shortage.

(f)  A permit issued under this section to a facility that bottles groundwater shall include as a condition of the permit the drinking water quality requirements of chapter 56 of this title.

(g)  The secretary may require any person withdrawing groundwater in the state to obtain a permit under this section if the secretary determines that the withdrawal violates the Vermont water quality standards or has an undue adverse effect on an existing use of groundwater, a public water system permitted by the agency of natural resources, wetlands, or water resources hydrologically interconnected with the well or spring from which the withdrawal occurs.  The secretary shall make a determination under this section based on review of the information set forth under subsection (d) of this section that is readily available to the secretary.

(h)  A permit issued under this section shall be valid for the period of time specified in the permit but not for more than ten years.  A withdrawal permit issued under this section may be transferred upon a change of ownership of the facility or project for which the permit was issued, provided that the new owner applies for an administrative amendment to the permit certifying its agreement to comply with all terms and conditions of the transferred permit and assume all other associated obligations.

(i)  The following groundwater withdrawals shall be deemed to comply with the public trust requirements of the state for groundwater management and shall be entitled to a presumption that the withdrawal complies with the public trust requirements of the state:

(1)  A groundwater withdrawal permitted under this section; and

(2)  A groundwater withdrawal for farming conducted in compliance with the requirements of chapter 215 of Title 6.

(j)  At least 30 days before filing an application for a permit under this section, the applicant shall hold an informational hearing in the municipality in which the withdrawal is proposed in order to describe the proposed project and to hear comments regarding the proposed project.  Public notice shall be given by posting in the municipal offices of the town in which the withdrawal is proposed and by publishing in a local newspaper at least 10 days before the meeting.    

(k)  On or before July 1, 2010, the secretary shall adopt rules to implement this section.  When rules are adopted by the secretary under this section, section 1415 of this title shall be repealed.  The rules adopted under this section shall include:

(1)  requirements for the mitigation of an undue adverse effect on drinking water supplies, farming, public water systems, or any other affected use when the secretary determines such an undue adverse effect is likely to occur due to a proposed withdrawal;

(2)  requirements for the renewal of permits issued under this section. 

§ 1419.  ATTORNEYS FEES

A court may award reasonable attorney’s fees to the substantially prevailing party in any proceeding to enforce the public trust requirements of the state regarding groundwater or in any proceeding regarding an alleged violation of the public trust requirements of the state regarding groundwater, except that the state shall not be required to pay attorney’s fees in any proceeding against it.

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.

(b)  Definitions.  As used in this section:

(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)(b)  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)(c)  Notwithstanding the provisions of subsection (c)(b) 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)(d)  Factors to be considered in determining the unreasonableness of any harm referred to in subsection (c), above, (b) 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)(e)  Nothing in this section shall be construed to preclude or supplant any other statutory or common-law remedies.

(f)  For the purposes of this section, a person who obtains and complies with a withdrawal permit issued pursuant to the requirements of section 1418 of this title shall be presumed to be engaged in a reasonable use of groundwater and not to cause unreasonable harm under subsection (b) of this section. 

Sec. 4.  6 V.S.A. § 4851 is amended to read:

§ 4851.  PERMIT REQUIREMENTS FOR LARGE FARM OPERATIONS

* * *

(g)  A farm that is permitted under this section and that withdraws more than 50,000 gallons of groundwater per day averaged over any 30

consecutive- day period, shall annually report estimated water use to the secretary of agriculture, food and markets.  The secretary of agriculture, food and markets shall share information reported under this subsection with the agency of natural resources.

Sec. 5.  10 V.S.A. § 1671(5) is amended to read:

(5)(A)  “Public water system” means any system, or combination of systems owned or controlled by a person, which provides drinking water through pipes or other constructed conveyances to the public and which:

(A)(i)(A)  has at least 15 service connections; or

(A)(ii)(B)  serves an average of at least 25 individuals for at least 60 days a year.

Public water system shall also mean any part of a piped system which does not provide drinking water, if use of such a part could affect the quality or quantity of the drinking water supplied by the system. Public water system shall also mean a system which bottles drinking water for public distribution and sale.

Sec. 6.  10 V.S.A. § 1675(g) is amended to read:

(g)(1)  Effective July 1, 2006, a public water system applying for a permit under this section for the bottling of more than 50,000 gallons of drinking water a day from a single source for public distribution and sale shall, in addition to complying with the requirements of this chapter and any rules adopted thereunder, 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.

(2)  The requirements of subdivision (1) of this subsection shall apply to a public water system permitted under this section when the system proposes to expand the bottling of drinking water from a single source such that the total gallons of water bottled from the single source would exceed 50,000 gallons a day.

Sec. 7.  10 V.S.A. § 6001(3) is amended to read:

(3)(A)  "Development" means:

(i)  The construction of improvements on a tract or tracts of land, owned or controlled by a person, involving more than 10 acres of land within a radius of five miles of any point on any involved land, for commercial or industrial purposes in a municipality that has adopted permanent zoning and subdivision bylaws.

* * *

(ix)  Any withdrawal of more than 500,000 gallons of groundwater per day that requires a permit under 10 V.S.A. § 1418.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us