Public’s right to play in Montpelier’s drinking water source to be decided

Berlin Pond is the source of the Capital City's drinking water. It's accessibility for recreational uses has caused a rift between the city and town. Photo by John Herrick/VTDigger

Berlin Pond is the source of the Capital City’s drinking water. It’s accessibility for recreational use has caused a rift among advocates. Photo by John Herrick/VTDigger

BERLIN — Nestled in the hills south of Montpelier, Berlin Pond is an attraction for a variety of recreational activities.

Dog-walkers, runners, cyclists and birdwatchers stroll along a network of quiet dirt roads circling the pond. Anglers cast lines from the pond’s bushy shore or from their boats in the pond’s center.

But the city of Montpelier has fenced off much of this 260-acre pond with “no trespass” signs banning fishing and hunting. That’s because the city is seeking to protect its only drinking water supply that was, until 2012, sheltered from many recreational activities.

The pond’s water flows downhill through a water filtration plant that removes and treats a variety of contaminants before it quenches the thirst of more than 14,000 daily consumers in the state capital, Berlin town and Central Vermont Medical Center.

What the plant cannot filter out is petroleum – which comes from spilling gasoline during a variety of recreational activities, such as drilling holes in the ice for fishing or driving a motor boat or snowmobile across the pond.

And the only way to know if this toxic chemical enters the drinking water is when consumers smell it or become ill, experts say.

“You would smell it in a glass of water,” said Robert Dufresne, an engineer who helped design Montpelier’s Water Filtration Plant before it was completed in 2000.

He said a gallon of gas could permanently contaminate 1.5 million gallons of water.

That’s why the city of Montpelier and a citizen’s group are petitioning the state to restrict access to the pond.

“To upgrade the plant to filter out petroleum is extraordinarily expensive,” Montpelier City Manager Bill Fraser said. “Our options are somewhat limited.”

Shortly after the city first tapped the pond for drinking water, it has purchased land around it and posted no trespass signs in order to lower the risk of contamination.

But in 2009, an avid sportsman protested these restrictions by kayaking on the closed pond, claiming the “pond’s ‘no trespassing’ signs were no longer valid, and that the pond was public,” according to court records. After a long legal battle with the city, the Vermont Supreme Court in 2012 ruled that only the state can close the pond, thus opening it up to unprecedented recreation.

Now the Department of Environmental Conservation is considering two petitions, one from Montpelier to ban petroleum-based activities and another citizen petition to bar all recreational activity. A decision whether to restrict access to the pond is expected by mid-August, according to the department.

But the sportsman who started the debate is continuing his push to keep the pond open.

“None of us went up there lightly,” said Rick Sanborn, owner of R&L Archery in Barre, about his act of civil disobedience in 2009. “It all comes down to it’s a public body of water.”

He says every resident has a constitutional right to enjoy Vermont’s water bodies. And he said paddling a boat on the shallow water causes no more disturbance than the power of wind pushing waves against the pond’s shoreline.

There are more than 1.5 billion gallons of water in the pond, and Sanborn said a gallon spill would be insignificant. Not only that, he said true anglers will avoid spilling anything that will ward off fish.

He said unless someone proves human contact with the pond is a threat to public health, the state is bound by the Constitution to keep it open to paddlers and people who want to fish.

“How are we going to damage it?” Sanborn said. “Show me the science. You cannot show me the science that this is bad.”

But Citizens to Protect Berlin Pond, a group seeking to ban all recreational activity on the pond, says petroleum contamination is not the only issue.

They say watercraft could carry invasive species from other water bodies, such as zebra mussels, which would cling to and clog to the water plant’s intake pipe in the pond. They also say more recreational activity will stir up soil on the pond’s shallow bottom, requiring that drinking water be treated with more chlorine.

The Department of Fish and Wildlife is supporting an access point along the Berlin-owned section of the pond. Commissioner Louis Porter said the department will not move forward on the project until DEC responds to the petitions.

“We’re certainly interested in working with Berlin on helping with access if that’s the way the petition ends up,” he said. “The conversation with Berlin predated the second petition” to ban all access to the water.

John Herrick

Comments

  1. Patrick Cashman :

    A small point on the article title. The single, specific body of water referred to is correctly called “Berlin Pond”.
    That Montpelier chooses to take water from Berlin Pond for use as drinking water is entirely a choice on their part. It is merely one of many activities that the pond is used for. If we are going to define the location by the activities that occur there, the title could also be “Public’s Right to Play in Common Waters…”, “Public’s Right to Play in Fishing Waters…” or “Public’s Right to Play in Boatable Waters…”
    To avoid all that, and to avoid looking as if the writer is staking out an opinion, the article could be more simply titled as “Public’s Right to Play in Berlin Pond…”

  2. Lars Woodson :

    John Herrick: How about doing some reporting here? Instead of repeating the unsubstantiated claims of the elitist “Citizens” group that wants to privatize Berlin Pond, how about talking with real water quality experts or any of the many public works administrators in towns that take their drinking water from lakes and ponds that have long been open to public recreation. I know you’d have to make more than a couple of phone calls, but at least you’d be reporting something new.

    • Jed Guertin :

      Lars,

      You’re right Lars, all these experts just love adding more chlorine into the drinking water.

      And what’s a little extra chlorine or pollution among friends.

      Now when it comes to the fish population, that’s where you draw the line.

  3. David Black :

    I am not a good letter writer or editor, but a good judge of reading between the lines of articles that interest me. I am also not one to tell a professional what to do, but in this case the heading of this article is misleading and bias.
    Some examples that could be used are as follows:
    “Berlin Pond’s future is in debate.”
    “Berlin Pond open to public access again.”
    “The public waters of Berlin Pond closed to the public.”

  4. Jamie Carter :

    How does BTV do it? Granted Lake Champlain is much much larger, but it is FILLED with boats, fishermen, etc.

    “To upgrade the plant to filter out petroleum is extraordinarily expensive,” Montpelier City Manager Bill Fraser said. “Our options are somewhat limited.”

    I’m not sure I buy this statement at all… too bad Bill didn’t have any specific information.

  5. Sheryl Rapée-Adams :

    I don’t want us Montpelier taxpayers paying millions to update the water treatment plant because people couldn’t use one of the 30+ other water bodies in easy driving distance from Berlin Pond. I wouldn’t knowingly paddle in your drinking water.

    • patrick cashman :

      And I am not willing to accept my Constitutional right being eliminated in order to save you money. Fortunately there is a solution. Since reasonable recreation poses no actual increased threat to Montpelier’s water supply, this can remain strictly a Montpelier problem. If the residents of Montpelier want to establish ludicrous water quality standards beyond those established by the state based on a wide pantheon of imagined threats, they can work with their city government to add whatever steps they believe necessary to further sanctify the water they drink. I’m thinking perhaps some sort of burning sage brush and shaman treatment, perhaps with crystals and incense, to eliminate the spiritual stain placed on the water by other Vermonters daring to touch it before it passes the lips of a Montie. And drums, it’s definitely going to need a lot of drums to really drive those spirits out.

    • Kathy Callaghan :

      You said it best, Sheryl

    • Darryl Smith :

      You said it even better, patrick.

      • Paul Lorenzini :

        Cheers to Patrick! Well put!

    • Jamie Carter :

      You could drill your own well like 75% of the rest of the state.

      • Paul Lorenzini :

        Jamie, I live in a water district and even if I did, they say I still have to pay them so I am a captive. Read further down.

        • Paul Lorenzini :

          Maybe my comment got erased or I commented somewhere else so I will reiterate……

          I live in a town with 110 meters on the water supply. I pay approximately $1200 per year for water, just my wife and I, no swimming pool, don’t water the lawn only the small garden rarely, don’t wash the cars much and showers are probably 25 gallons or so and the toilet is 1.6 gallons per flush or less, unless I have to flush twice”smirk”. We already pay that and the EPA has mandated a 1.2 MILLION DOLLAR improvement plan for 110 people. They have not said I cannot kayak in the quarry holes yet so I guess I should thank my lucky star. Montpeliers water is far worse and it was before they allowed the big public pond to be enjoyed by the public.

  6. Annette Smith :

    Drinking water disinfection is a complicated problem, and Vermont’s water system operators are increasingly challenged to meet EPA regulations. Burlington uses chlorine for secondary disinfection. The Champlain Water District which serves all the communities around Burlington (the donut, where Burlington is the hole) combines chlorine with ammonia to create chloramine.

    One of the regulations that is most challenging to water system operators is the requirement to reduce disinfection byproducts (DBPs) that occur when chlorine comes into contact with organic matter. The first and best way to meet the regulations is through source water protection. Translation: keep all the crap out of the water.

    Failing to meet the regulations is increasingly resulting in the introduction of ammonia to the chlorinated water. Chloramine does effectively stop the chemical reaction and reduces the DBPs created by chlorine, but it creates a host of other unregulated DBPs that are being found to be far more toxic than chlorine’s, and hundreds of people in the CWD report getting sick from their water since chloramine was added in 2006.

    While I understand the desire for recreational use, surface water systems are especially vulnerable to EPA’s somewhat draconian requirements. Essentially what you have is a reservoir, and there are plenty of examples in New England where all recreational uses are excluded, especially motorized vehicles, to protect surface water sources used for public water supplies.

    Sorry to, so to speak, pee in your pond, but that’s exactly what you’re doing if you want to do anything other than implement what is by far the best and first step in achieving top water quality and achieving compliance with EPA’s drinking water regulations: protect the water at its source.

    The last thing you want is chloramine, or the need for an expensive filtration system. Keep it simple, keep it safe. It’s common sense.

  7. I used to spend a lot of time enjoying the Thurman Dix Reservoir birding and looking for wild flowers and fauna. It changes and evolves every year.

    Ever since fishing was allowed at Thurman Dix Reservoir in East Barre a few years ago there has been a sharp increase in garbage, refuse and even appliances and containers of oil, transmission fluid, tires and the like being dumped around the reservoir. I found a pile of garbage bags with household trash. There are Lots of fishing lines, sinkers (some probably lead – IN OUR DRINKING WATER) and lots of fast food containers, beer and soda cans and bottles. What’s in the reservoir that we Can NOT SEE…..!

    I have met some of the folks that live around there and they have been going around picking up the trash at their own expense and time. There are designated spots for fishing but I have spoken to many people that I have spotted fishing in areas that are NOT designated for fishing. I have spoken to out-of-state hunters with their brand new hunting clothing and shiny new rifles who have NO CLUE and probably do not care about the hunting laws and safety relations in our beautiful State Of Vermont.

    Since they opened up fishing I have noticed a steady decline in water fowl since then and some species aren’t coming around any more, Woods Ducks for one. I have seen Canadian Geese in the reservoir that have been shot.

    Once you open up ANY kind of sport or recreational activities, that alone will open Pandora’s Box for these kinds of problems caused by people who have NO Respect for other peoples drinking water, safety of local residents or for the preservation of nature or endangered species.

    It’s a No Brainer folks.

    • Karl Riemer :

      Well, it certainly can be a no-brainer if that’s your preference. Alternatively, brains can be used to good effect.

      As Annette Smith points out, disinfection is a complicated issue that goes beyond simply killing pathogens; federal regulations and incidental/consequential chemical interactions tangle the choices. As Robert Dufresne points out, pathogens are not the only problem. When Montpelier tapped Berlin Pond as its potable water source, it was ringed with private camps dumping raw sewage and anything else unwanted into the water. Curtailing that pollution was obviously in the public interest. How far down the curtailment road is reasonable? Well, no one was sure back then so they went all the way and banned everything. The time has come to figure out what’s reasonable, which is generally best accomplished with our celebrated reasoning ability. No-brainers don’t much help.

      It’s likely all petroleum fractions are unreasonable, and should be excluded. (As I understand it, that’s the gist of Montpelier’s petition.) It’s possible that swimming adds to the pathogen load and should be excluded. It’s possible that lead sinkers are a problem and should be excluded, or that fishing at all is a problem, or that chewing tobacco is a problem. Those seem far-fetched, but I’m no expert. However, the citizens group alluded to is also no expert and has taken the no-brainer stance that human contact with water is intrinsically perilous and rather than figure out what is and what isn’t, with expert guidance, their petition is to simply lump all activity into one category: thou mayn’t. That’s simply unreasonable.
      The statement that any recreational activity leads to trashing of waterways is demonstrably false. Visit Green River, or any of a number of other quiet lakes and look around. The statement farther north that *I* wouldn’t paddle in *your* drinking water is even more ridiculous. Drinking water is drawn straight from any number of lakes, including the big lake. If you paddle flat water, you paddle in drinking water. Paddling in water doesn’t contaminate it unless you’re a duck.

      • Annette Smith :

        Though EPA is in my opinion a part of the problem right now with drinking water regulations, here is a link to a page about citizen involvement in source protection http://water.epa.gov/infrastructure/drinkingwater/sourcewater/protection/citizeninvolvementinsourcewaterprotection.cfm.

        This is not something to be fighting over, folks. Come together and talk over solutions. I can tell you having worked on issues involving water systems that draw from Lake Champlain that you really don’t even want to compare what you’ve got to the problems with pesticides, pharmaceuticals, etc. that those systems have to deal with. Grand Isle has voted to install a Granular Activated Carbon system and that decision is partly because of knowing just how much pollution they are being exposed to.

        The bottom line is that the more that goes into the water, the more the water system operator has to address at the treatment plant. And to the comments below, yes pee is problematic, as is adding ammonia. You don’t want to be adding nitrogen sources to your drinking water source.

        Most people are under the impression that drinking water disinfection is relatively simple. Filter it, add chlorine, send it out. The Champlain Water District uses 8 different chemicals. The more polluted the water source, the more treatment it requires, and that includes more chemicals.

        While you’re talking about Montpelier’s water, do yourselves a favor and stop adding fluoride. Read up on it, there’s good science now, it’s not a wacko issue. If people want to use fluoride, that’s their choice. But a medical treatment has no place in drinking water.

        • Karl Riemer :

          “Most people are under the impression that drinking water disinfection is relatively simple. Filter it, add chlorine, send it out.”
          Which is often true for ground water, but surface water is another kettle of fish, so to speak, even without significant residential, industrial, agricultural or recreational impact.

          If you aren’t sufficiently proud of yourself for being clever enough to live in Vermont, go check out what some people drink. Sterile, sure, because chlorine, ozone, UV can disrupt any living tissue, but those nasty little molecules…

        • Patrick Cashman :

          No Annette, this is exactly what we need to be fighting over. Starting with the presumption that there is a “problem” that requires “solution”. Quietly forfeiting our rights to the most excitable knee jerk activists and self interested elitists in order to “solve” a problem that doesn’t exist is straight up weak and cowardly.

          • Annette Smith :

            There is nothing knee-jerk or elitest about protecting drinking water sources.

          • patrick cashman :

            Annette,

            Your “protection” is not necessary. State water quality standards exist to protect drinking water. Those standards are fortunately based on the reasoned judgment of professionals, not the emotional bleating of the excitable drum circle crowd. So the only thing you seek to protect Berlin Pond from is the exercise of their rights by Vermonters seeking to celebrate our history as a rural state that hunts, traps, and fishes. And, of course, from impinging on the view of the fortunate few owning the homes ringing Berlin Pond.

      • If specific regulations are spelled out and water related sports and recreation buffs Actually Followed those regulations that would be all well and good but we All Know that Everyone does Not.

        If water sports is more important than public safety (perhaps Money Speaks louder than public safety) to water sports buffs and not to mention the costs of cleaning up after those who DO break creating an additional tax burden to property owners in Montpelier and Berlin. Also there are the additional costs to pay law enforcement to canvass and enforce those regulations and let’s not forget all those related expenses. Well,,, the list just goes on doesn’t it.

  8. Paul Donovan :

    Regardless of how this decision goes, the pond will now be a target to that certain brand of idiot yahoo who will pee in the pond just to be able to say they did.

    • Karl Riemer :

      That may be, but from a public health perspective: so what?
      Of all the contaminates being considered, real and imagined, pee is just about the least problematic. I’d wager its most significant hazard is from traces of excreted drugs, especially hormones. There are certainly no pathogens involved.

  9. Peter Liston :

    Reminds me of the great W.C. Fields quote about why he doesn’t drink water. You’ll have to Google it. It can’t be repeated here.

  10. Jed Guertin :

    First and foremost, I agree with the SCOVT decision. I feel it was well thought out and reasonably. It’s historical analysis was excellent.

    But the mantra of the “open the pond” group has been from the beginning has been that the Montpelier elites have taken away our rights. Nothing could be further from the truth, there is no evidence to suggest otherwise, but it makes for good press.

    The fact is that SCOVT did not open Berlin Pond up to recreation, nor did it ever suggest that the City of Montpelier did anything illegal, including taking away Vermonters rights found in the public trust doctrine, in its actions over the last 130 years of managing the pond.

    It said, “Our opinion today does not hold that recreational use of Berlin Pond must be permitted. We conclude only that valid regulation would require action by the state – either by direct regulation or by delegating such power to the City – and this has not yet occurred.”

    The real issue here is what steps did ANR take to decide to open the pond immediately after the decision. The SCOVT was clear that there were valid competing legal concerns and that it was ANR’s job to weigh them with equal concern. So the first question is, how did ANR go about making that determination? Simple things like managing the the prohibition “No internal combustion engines” are allowed on the pond, the need to protect the pipe, determining how to address issues like impact of recreational use in severe droughts and intake for Montpelier’s water to name a few concerns of the residents of Montpelier. None of this has been even discussed from the information currently available. If these issues have been addressed in the last 2 years I’d love to see it.

    The answer appears to be ANR simply decided to open the pond. It has done nothing to address Montpelier’s concerns. The only thing that ANR has taken a position on regarding is to push for the installation of a boat ramp on a property currently owned by the city that it has decided may have a flaw in the deed. ANR is spending some $6,000.00 (its portion of the title research) and, if the deed is found faulty, intends to spend an additional sum to create a boat ramp. But as I said it has done nothing to address even these critical concerns, never mind the other equally valid concerns that Montpelier residents have about the future of the quality of its sole drinking water source.

    Part of the problem is that ANR hasn’t had the money or the political will to study the issue or to properly manage the pond these last two years. Maybe when Fish and Wildlife puts in their new ramp they’ll be willing to spend a few thousand dollars to come up with a way to steam zebra mussels.

    The decision to simply open the pond has nothing to do with science or protection of rights, I think we’ll find this is all about politics, plain and simple.

    • Patrick Cashman :

      Of course it’s about rights. To claim otherwise is pure delusion. Specifically that “The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not inclosed, and in like manner to fish in all boatable and other waters (not private property) under proper regulations, to be made and provided by the General Assembly.”

      And again no, Jed. The state cannot simply delegate administration of Berlin Pond, (located in Berlin), to Montpelier. Nor can they simply delegate management of Caspian to Bennington, Fairfield Pond to Brattleboro, or Shelburne Pond to Rutland. The pond is not adjacent to or contained within Montpelier.
      If you want to shoot for a legislature approved charter change that would grant Montpelier such authority then have at it. But I see the remaining 99% of Vermonters having some issue with granting Montpelier “Super-City” powers irrespective of city and town boundaries.

      And remember Jed, you don’t get to cherry pick only those portions of the SCOVT you like. You get the whole thing including the bits you don’t like. Such as “This leaves only the argument that the power to regulate recreational uses is necessary for Montpelier to maintain a reservoir or more generally to use Berlin Pond as its water supply. Although witnesses for the City testified to why the City wants to prohibit swimming, boating, and fishing in Berlin Pond, they did not try to prove, and the superior court did not find, that the prohibition was necessary for Berlin Pond to be used as a water supply. Indeed, the Vermont Water Quality Standards on which defendants rely seems to be a complete answer to such a claim because it provides that use of a source for public water supply is compatible with the recreational uses in issue here.”

      • Jed Guertin :

        Again, I stand by my position and I have read the full 64 points presented by the SCOVT, and as I said, I am quite comfortable with their final decision.

        In particular, I’m quite comfortable with my last statement, “The decision to simply open the pond has nothing to do with science or protection of rights, I think we’ll find this is all about politics, plain and simple.” The critical word for me here is “SIMPlY,” SCOVT didn’t consider this a SIMPLE case with a simple answer, but sadly it’s clear ANR has.

        Why? First, SCOVT decision did not open up the pond for recreational use, that, the court said was now the responsibility of ANR. Second, the Court did not say that the answer lay solely in the jurisdiction of the Public Trust Doctrine. Third, it clearly recognized ANR’s authority and responsibility in making an appropriate decision that addresses all of the issues. This is clear in their statement, “We conclude only that VALID regulation would require action by the state.” (The emphasis is mine.) SCOVT recognized that there were two competing and valid issues at play, and that it was ANR’s authority and responsibility to give both sides equal, serious consideration. ANR’s decision at the close of the case, was very simple, don’t address the issues, go with a 23 year old mindless default position. This is clear with their inability to address some of the most basic issues regarding the protection of Montpelier’s water supply.

        As a Montpelier resident I found one point where I agree with Pat Cashman, he states “The state cannot simply delegate administration of Berlin Pond, (located in Berlin), to Montpelier.” Just as I’d argue against him , as much as I’d hate to if he said, “The state can delegate administration of Berlin Pond, (located in Berlin), to Montpelier.” It’s the words, in this case the “NOT” and “SIMPLY” that make all the difference.

        SCOVT’s decision was not simply an issue of the taking away of rights, if it was they could have simple said, ” “Our opinion today does hold that recreational use of Berlin Pond must be permitted.” No, they put that (for some pesky) “NOT” in the sentence and they added, “We conclude only that VALID regulation would require action by the state.” (Again the emphasis is mine.)

        Again i feel, the decision to simply open the pond has nothing to do with science or protection of rights, I think we’ll find this is all about politics, plain and simple.

  11. rosemarie jackowski :

    About drinking water. The municipal water line is at the end of my street, but the town will not loop it down, so I and others can connect to it. We must buy all our water in plastic jugs. The well water at our homes is not for drinking. This is an important health issue.

    http://www.motherjones.com/environment/2014/06/bpa-free-plastics-tritan-nalgene-dangerous

    • Paul Lorenzini :

      Rosemarie are you volunteering to pay the big bill or do you feel water is an entitlement?

  12. Paul Lorenzini :

    Maybe Berlin should stop letting Montpelier drink from Berlin’s pond.

    Them’s fighting words. LOL!

  13. Paul Lorenzini :

    Maybe it is all the motorboats in the quarry holes that makes water so expensive where I live?

    Hi, Montpelier water drinkers, what does water cost you per year, this is an informal poll.

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