The bill, H.6, would allow Montpelier to close Berlin Pond to swimming, boating, fishing and other activities.
An overwhelming majority of Montpelier voters supported the move in March 2016, when they voted for a change to the city’s charter that would permit the closure. A charter change requires legislative approval, which H.6 represents.
Advocates for the closure say H.6 will simply correct a chain of historical oversights that led to a Vermont Supreme Court decision in 2012 stripping Montpelier of authority over the pond, which lies in neighboring Berlin.
They also say customers of Montpelier’s municipal water system are at an undue risk from harmful pathogens and chemicals as a result of the state’s decision to keep the pond open to recreation.
“We’re talking the recreational wants of a small number of people against the health and safety of 20,000 people,” said Rep. Warren Kitzmiller, D-Montpelier.
Looking to the constitution
“It just seems reasonable,” Kitzmiller continued. “The hooks and bullets boys … are very small in number, and they’re fighting not because they care about Berlin Pond,” but because they believe constitutional principles are at stake, “and they don’t want to back up one inch for fear of losing things.”
Indeed, fishing enthusiasts say they worry about an erosion of their right to fish the state’s public waters — a right that is given by the Vermont Constitution, although it is one that’s subject to “proper regulations.”
Nate Smead is a Berlin resident and the founder of a group that advocates to keep the pond open, called Friends of Berlin Pond.
“In the constitution it’s guaranteed … that there’s a right to (fish on) public water, and there’s no question Berlin Pond is public water,” Smead said. “It’s not about a personal place for me, it’s a bigger issue.”
Smead hasn’t been on Berlin Pond in two years, he said, but he’s passionate about it nevertheless because he believes “it’s a legal right … that’s now under attack.”
The pond is a beautiful place Vermonters should have access to, Smead said.
“It’s like a whole new world right on our doorstep,” he said. “It’s magical. You’re only a mile away from Montpelier, and it’s like you’re in the middle of the wilderness.”
Most days there aren’t any people on the pond, Smead said, and at most it sees a handful of recreationalists at any given time.
Smead’s right that almost nobody uses the pond, Kitzmiller said, arguing that that’s why closing it to recreation should be a no-brainer.
As for principles, Smead is mistaken about the constitution, Kitzmiller said.
“They say that about guns, too, but they never talk about (the clause that says) ‘well-regulated militia,’” Kitzmiller said. The Vermont Constitution provides access to public waters for fishing, but “under reasonable regulation,” he said, quoting the specific wording.
Indeed, the Vermont Supreme Court case that took control over the pond from Montpelier and gave it to the Agency of Natural Resources explicitly said Montpelier could regulate access to Berlin Pond — provided that legislators conferred that authority.
Montpelier can’t bar access to the pond because currently it’s the state’s, and not the city’s, prerogative to do so, the state’s high court found in 2012. Nothing in the Vermont Constitution prevents the state from handing that authority to Montpelier; the state simply has not done so, according to the decision.
The added risk: ‘de minimis’
But there are other good reasons to keep it open, proponents say.
Some environmental advocates say the pond is contaminated already from a wide range of sources and that the additional risk posed by recreation is overshadowed by the importance of public access to the natural environment.
For instance, Canada geese probably pose a greater risk to Berlin Pond’s water quality than does nonmotorized recreation, said Perry Thomas, who runs the state’s lakes and ponds management and protection program. The geese, which are becoming more prevalent on the pond, can carry “any pathogens that a warm-bodied creature might carry,” Thomas said.
“We look at that and wonder if nonmotorized use moves the risk dial, and we can’t see that it does any substantial amount,” Thomas said.
This is the reasoning that led a former Department of Environmental Conservation commissioner to keep the pond open, despite a 2014 petition to close it. The benefits, he said, outweigh the additional risk, which he called “de minimis.”
“(One) value in Vermont is to allow people to have access to natural places, to fish, and swim and recreate,” said David Mears, formerly commissioner and now vice dean for faculty and associate professor of law at Vermont Law School. “It enriches communities’ quality of life. It connects communities — including children — to why we protect these places in the first place.”
Mears, who at that time headed the DEC, wrote a decision in 2014 upholding public access to Berlin Pond. The pond is already surrounded by roads, homes, farms and Interstate 89, he said.
“If the only concern was protecting the drinking water, in the sense of absolutely pristine, and no risk … I’d move the interstate, I’d move the roads, I’d move the septic tanks, I’d move the farms, and I wouldn’t let people swim or recreate in the pond either,” he said.
But that’s not the situation today, Mears said.
Because the water quality is already at risk from so many possible contaminants, Mears said, the city must have in place a robust system to treat and filter it. A system that can handle farm effluent, nearby septic tanks, interstate runoff and dirt-road erosion can easily withstand the additional demands from public recreation on the pond, he said.
It doesn’t take much
That’s true up to a point, said Robert “Red” Dufresne, the civil engineer who designed Montpelier’s water treatment system. But even the most modern water treatment plants have limits, and Montpelier’s is not the most modern.
For example, when engineers designed Montpelier’s system 30 years ago, they didn’t have in mind a sometimes-fatal pathogen common throughout the United States called cryptosporidium, Dufresne said. The “rapid sand” filtration system Montpelier has wasn’t made to strain cryptosporidium oocysts from the water, he said.
The system does nevertheless filter out 99 percent of cryptosporidium oocysts, he said. This is critical, because the chlorine Montpelier treats its water with after filtering doesn’t kill any oocysts that remain.
But 99 percent removal may not suffice, for at least two reasons, he said.
Unlike when Montpelier built its water treatment plant, the Environmental Protection Agency now has rules for water treatment plants requiring them under certain conditions to remove or kill 99.99 percent of cryptosporidium oocysts. If pathogen levels in Berlin Pond rise appreciably, that requirement will be triggered, Dufresne said.
Montpelier will need to invest nearly $1 million in its water treatment plant if that trigger is reached, he said.
St. Johnsbury, whose new water treatment plant Dufresne is currently designing, had to spend as much as $500,000 extra to cope with additional pathogen levels expected from recreational use on its own water source, Stiles Pond, Dufresne said.
But another problem with only a 99 percent removal rate for cryptosporidium oocysts is that a very small number of these organisms can make people very sick.
Four years ago, Baker City, Oregon, suffered an outbreak of cryptosporidium that sent 20 people to the hospital and is thought to have sickened thousands. State health officials believe the outbreak originated from the town’s municipal water supply.
When they tested the water supply, officials found only one or two oocysts in 50-liter samples, said Michelle Owen, Baker City public works director.
Humans can carry cryptosporidium without symptoms, and a single gram of feces can contain millions of oocysts, scientists say.
If a fisherman above the intake for Montpelier’s water supply were to defecate over the side of a boat, or through a hole in the ice, Dufresne said, “it’s a numbers game.”
“Even an up-to-date treatment plant like Montpelier’s is going to take (oocyst numbers) from a million to 10,000,” he said. “Those 10,000 can survive everything we do with chlorine.”
Boaters and anglers don’t do that, though, Smead said. And a public access to the pond that state officials hope to build next year, with a parking lot, boat ramp and restrooms, will all but eliminate the possibility of someone torpedoing Montpelier’s intake pipe with a bowel movement, he said.
But that won’t eliminate another threat, Dufresne said: terrorism. It would be relatively simple to find the exact coordinates for Montpelier’s intake pipe, and the state has for years published on the internet maps showing where it’s located, he said.
Someone could easily park an ice shanty over it and feed into the pipe any number of toxic substances without being observed, Dufresne said.
“Many contaminants, we would not see or detect even if the water treatment plant were staffed the way that it is,” he said. “We wouldn’t even see it go by.”
“It’s a pretty remote chance, but so are pressure cookers going off in Boston,” he said, alluding to the Boston Marathon bombing.
Threats to human safety such as these have led every other state in New England to prevent public access, with very few exceptions, to bodies of water municipalities use for drinking water, Kitzmiller said.
There are other threats to the pond from recreation, Kitzmiller said, such as invasive species.
A canoe used in Lake Champlain in the morning could transmit zebra mussels if used in the pond that afternoon, he said. Gas-powered engines are prohibited, he said, but a battery-powered engine could widely broadcast a small milfoil infestation already existing in the pond.
Fishermen say these worries are unfounded.
A duck could carry zebra mussels from Lake Champlain to Berlin Pond just as easily as a canoe might, said fishing guide and state Rep. David Deen, D-Westminster.
Berlin Pond sits right off Interstate 89 near Exit 7, and it’s easily accessed by anyone with bad intentions, Smead said. A terrorist willing to bother with Montpelier won’t be dissuaded by a recreation ban on the pond, he said.
Past, present and future
Really what it comes down to, Smead said, is elitist, wealthy landowners with homes overlooking the pond who want to close it off to everyone else.
Kitzmiller said 3,000 Montpelier residents, who voted last year for the charter change reclaiming control of Berlin Pond, disprove Smead’s theory.
Although a bill identical to H.6 failed last year, Kitzmiller said he’s hopeful this time. One Republican who voted last year to prevent the bill from moving out of the Government Operations Committee to the House floor has been replaced, he said.
That representative was replaced on the committee “by one person who was not there last year. That’s me,” Kitzmiller said.
Charter change legislation isn’t subject to the crossover deadline for bills to pass out of committee. The deadline was Friday.
Berlin Pond has been Montpelier’s drinking water source since 1872, and since that time the city has bought all the shoreline except for 85 feet Berlin owns. Montpelier has posted its land against trespassing. Boaters have accessed the pond at a point where a public road right of way overlaps the shore.
The state’s Board of Health closed Berlin Pond to the public in 1926 after a wave of waterborne illnesses, and Montpelier had for decades before that prohibited even swimming at the pond, Kitzmiller said.
State legislators also incorporated into the city of Montpelier’s charter, in 1894, authority to ban all human activity that could corrupt or degrade Berlin Pond’s water quality.
Montpelier city leaders eliminated that provision of the city’s charter in 1975, thinking the Board of Health closure made the city’s separate authority over the pond redundant.
The state moved authority over drinking water from the Board of Health to the Agency of Natural Resources in 1989. In doing so, the board’s previous orders were vacated, including the ban on human activity in Berlin Pond.
As a result, there was no remaining order in effect to keep the pond closed to the public.
The Vermont Supreme Court discovered all of this in 2012, and on these grounds found that Montpelier had no ban in effect on recreation on Berlin Pond. The court also determined that the state, and not the city of Montpelier, was the entity in control of the pond.
After the court’s ruling, state regulators chose not to keep Montpelier’s closure in place.
Since then, Montpelier residents have justifiably felt vulnerable to any number of threats to their health and safety, Kitzmiller said.
“There are plenty of folks out there who’d like to piss on Montpelier, and this is how to do it,” he said.