The Legislature has scuttled a bill that would have allowed towns to prohibit fishing, swimming and boating on their drinking water sources.
The bill was sparked by the city of Montpelier’s attempt to prohibit public access to Berlin Pond.
The 293-acre pond is the capital city’s drinking water source for more than 14,000 daily consumers in Montpelier, Berlin and the Central Vermont Medical Center.
A bill that could limit recreational access to the pond, H.33, grew from a fear by some Montpelier residents that their drinking water supply was threatened by unrestricted human contact. The legislation would apply statewide, allowing towns to issue more restrictive regulations on drinking water supply protection.
But the bill received stiff opposition from members of the fishing and sporting community who feared it would crack the door on a long-standing principle that has encouraged access to Vermont’s waterways. It was also opposed by state environmental protection and fish and wildlife groups.
Surface waters in Vermont are considered to be public trust resources, which means the waters legally belong to all Vermonters — drinkers and recreational users alike. Opponents of H.33, including the Shumlin administration, say H.33 would overturn this principle. Supporters say there are exceptions.
“The public trust doctrine is not chiseled in concrete,” said Rep. Warren Kitzmiller, D-Montpelier, who introduced the bill. “We have 812 ponds in this state and this legislation has the potential for affecting about 12 of them. And the bill doesn’t say these ponds will be closed.”
The city of Montpelier already regulates pond uses. Following a Supreme Court decision that had the effect of lifting the city’s restrictions on the pond, the Agency of Natural Resources approved a petition by the city to ban internal combustion engines on the pond, such as motor boats and ice augers.
Lawmakers had little appetite for allowing towns to do the same without having to first petition the state. The House Fish, Wildlife and Water Resources Committee didn’t vote on the bill, but the chair of the committee effectively killed it by saying the committee would not vote on it this year.
“I have no intention of taking this bill up again,” said David Deen, D-Putney. “The public trust is very important to me because it is what protects our waters. It says that everybody can use the water as long as you are not denying someone else to use the waters of the state.”
Deen said all but one member of his committee opposed the bill. He said he received more letters from constituents in opposition to the bill than he received from those supporting the state’s premier water quality legislation, H.35.
“It became controversial. Just overwhelming opposition,” Deen said.
The sporting community has been among the most vocal detractors. But even some water quality advocates opposed the bill.
State officials say the city’s water treatment plant can filter and treat for existing contamination entering the pond: the pond is surrounded by a dirt road and homes, and it is used by warm-blooded animals such as ducks and beavers. The Department of Environmental Conservation, which monitors the state’s water quality, says the existing system could treat for additional human contact from fishing, paddling and swimming.
City officials say the turbidity levels in the pond have risen since the Supreme Court ruling, requiring the plant operators to replace filters more frequently. City officials fear the spread of invasive species such as zebra mussels that could clog the intake pipe.
The Department of Environmental Conservation says less restrictive methods can be used to control the spread of invasive species, such as signage, area greeters and education.
Kitzmiller fears the state will have to invest more in the treatment plant to address rising sediment levels and any potential spread of invasive species.
“They very clearly would rather apply a pound of cure rather than invest in an ounce of prevention,” he said.
