Editor’s note: This commentary is by Page Guertin, a Montpelier resident and member of Citizens to Protect Berlin Pond, the group that has filed a petition with the Agency of Natural Resources to protect the pond from recreational access.
Berlin Pond has been Montpelier’s water supply source for 130 years, and during most of that time it was protected from human access, and therefore a relatively pure water supply. Now a combination of governmental action (or inaction) and a Vermont Supreme Court ruling has turned that history on its head, and Montpelier’s water supply is seriously threatened by human recreation on the pond. Montpelier owns most of the land around the pond, but a disputed area is being surveyed for the possibility of installing a gravel launch ramp for boats, to be built and financed by our Department of Fish and Wildlife (F&W).
Gov. Shumlin and Natural Resources Agency Secretary Deb Markowitz consider opening the pond to recreation a victory for sportsmen’s rights under the Vermont Constitution’s public trust doctrine, which holds that “navigable waters and the land below them are held in common by the people of this State.” But what about the people of Montpelier, the thousands who work here daily, the Central Vermont Medical Center, or the residents and businesses in Berlin that use the same water source? What about their rights — or rather their absolute requirement — for clean water? Whose rights are more important? Which use is more applicable under the public trust?
The Supreme Court’s 2012 decision clearly recognized the significance of Berlin Pond as Montpelier’s sole water source: “Although we are sympathetic to the City’s significant concern for regulating the source of its drinking water, the City’s powers are limited to those conferred upon it by the State of Vermont.” The court concluded that the city had not been granted the statutory power to control use of the pond: “… under the laws of this state, the recreational use of Berlin Pond is a matter of state concern requiring a resolution at the state level.” However, the justices also stated: “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.”
In spite of the admonition contained in that last phrase, Fish & Wildlife, which now has jurisdiction over the state’s waters, defaulted to an existing rule allowing boating, fishing and swimming — a rule which applies to many lakes and ponds in Vermont that are not drinking water sources. While one might think that “public water supply” could easily fall within the bounds of the public trust, Fish & Wildlife is clearly predisposed towards the sportsmen and took the path of least resistance. The public trust doctrine says nothing about recreation — in fact it was created when transportation and livelihoods were heavily dependent upon waterways, but that is not the case today. I suspect that recreation was not on the minds of those who drafted our Constitution.
Citizens to Protect Berlin Pond is holding a rally on the Statehouse lawn on Saturday, Aug. 16, 11 a.m. to noon, to demonstrate support for protection of our drinking water.
We in Vermont are fortunate to have abundant fresh water, but we cannot afford to abuse it or take its quality for granted. Vermont’s water quality policy (VSA 10, §1250) begins with “(1) protect and enhance the quality, character and usefulness of its surface waters and to assure the public health; (2) maintain the purity of drinking water …” It continues, “It is further the policy of the state to seek over the long term to upgrade the quality of waters and to reduce existing risks to water quality.” Allowing recreation on Berlin Pond flies in the face of that policy. The original 1926 Board of Health rule protecting the pond was written to prohibit “activities judged to potentially pollute a source of water,” according to the Supreme Court opinion. Fish & Wildlife chose not to adopt that rule when authority over the waters transferred to them. Rules can be changed, however. Massachusetts, for example, has an exception to its public trust doctrine which protects drinking water supplies. We would be wise to adopt that in Vermont.
According to the designer of Montpelier’s water treatment plant, that system is not capable of detecting or removing petroleum products, nor can it handle greatly increased turbidity. Invasive species like zebra mussels or Eurasian milfoil, unwittingly carried into the water on the bottom of boats or boots, could clog the water intake or the filtration system, requiring expensive maintenance. People walking along the silty shores to fish or launch boats stir up the soft bottom, causing turbidity, and swimmers — just by being in the water — increase the fecal coliforms and other pathogens present. Both turbidity and pathogens increase the demand for chlorine to treat the water. Chlorine and its byproducts, trihalomethanes, are known carcinogens, despite worldwide use for water purification — do we really want to increase the amount of it required to remove pathogens in our water? What happens if the treatment plant cannot keep up with the degradation of the water coming into it? Who pays for the upgrades that may be required? We pay: the users of the water system, not the boaters or anglers.
Prevention is always more effective and less expensive than remediation.
Citizens to Protect Berlin Pond, the group that filed a petition requesting a rule change closing the pond to recreational use, is holding a rally on the Statehouse lawn on Saturday, Aug. 16, 11 a.m. to noon, to demonstrate support for protection of our drinking water. All participation is welcome.
More information can be found at the website www.protectberlinpond.org.
