Fight over Montpelier’s water is a matter of principles

Berlin Pond is the source of Montpelier’s drinking water. File photo by John Herrick/VTDigger

A lawmaker hopes to restore the city of Montpelier’s control over its drinking water supply and says a bill identical to one defeated in last year’s session could accomplish that this year.

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.”

Rep. Warren Kitzmiller, D-Montpelier. File photo by Anne Galloway/VTDigger

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.”

David Mears, former Department of Environmental Conservation commissioner. File photo by John Herrick/VTDigger

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.”

An ice fisherman removes a yellow perch from a hook. File photo by Dirk Van Susteren

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.

Montpelier City Hall
Montpelier City Hall. File photo by Tom Brown/VTDigger

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.

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  • Steve Woodward

    “The hooks and bullets boys”. That says it all. I guess he feels so safe in his seat, that he can disregard such a large chunk of his constituency. To insult the very people you represent with such a narrow minded view of the sportsmen community, shows the utter discontent and hubris that a majority of our lawmakers have towards the populace.

  • Stewart Clark

    Ultraviolet light treatment at relatively low doses will inactivate Cryptosporidium. Water Research Foundation-funded research originally discovered UV’s efficacy in inactivating Cryptosporidium. reference:

    Rochelle, Paul A.; Fallar, Daffodil; Marshall, Marilyn M.; Montelone, Beth A.;
    Upton, Steve J.; Woods, Keith (2004). “Irreversible UV Inactivation of Cryptosporidium spp. Despite the Presence of UV Repair Genes”. The Journal of Eukaryotic Microbiology. 51 (5): 553–62.

  • Robert Joseph

    The “hooks and bullet boys” comment clearly shows Rep. Kitzmillers disdain for sportsmen.

    Also to correct Mr Kitzmiller (since the author of the article did not), the VT constitution does not mention a “well regulated militia”-

    “Chapter I, Article 16 of the Vermont Constitution states:

    That the people have a right to bear arms for the defence [sic] of themselves and the State — and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power.”

    Maybe it’s time to read the constitution he references.

    • Dan DeCoteau

      Someone here said awhile ago and I’ll repeat it, Don’t confuse elect ability with intelligence. The phrase “a well regulated militia” in 1770’s language required Americans to report for duty with their own equipment and firearms. The overriding purpose of the Framers in guaranteeing the right of the people to keep and bear arms was as a check on the standing army, which the Constitution gave the Congress the power to “raise and support.”
      Obviously, for that reason, the Framers did not say “A Militia well regulated by the Congress, being necessary to the security of a free State” — because a
      militia so regulated might not be separate enough from, or free enough
      from, the national government, in the sense of both physical and
      operational control, to preserve the “security of a free State.”

      All of these meanings are written in the Federalist papers by the framers of the constitution. In today’s world we have politicians swearing to defend the constitutions of state and federal origin and they still twist the words and meanings of them to support their personal ideologies. And this is why I have decided to bring up the phrase for Mr. Kitzmiller to discuss it here. You can find more about the framers and why they chose the words they did and it has nothing to do with regulating firearms. You can read more here, http://www.lectlaw.com/files/gun01.htm
      I am a proud member of the “Hook and Bullets Boys or in other words a sportsman and defender of freedom!

  • Andrea Epstein

    Having lived in many different states over the years and a recent transplant to Vermont it truly amazes me that ANY activities are allowed in a city’s drinking “reservoir”. Any other state I have lived in has always had fences or obstructions so the Public cannot access any of it, Keeping the water safe. When we were house hunting we came across a property near the pond- there were beer bottles by the edges of the water. Making the Pond more accesible to people is only going to exarcerbate the problem and then when it is contaminted, what is the plan then??

    • Kevin Lawrence

      Yeah, like how do the folks in Burlington stay healthy drinking lake water with folks from Quebec, VT, and NY all using the lake for recreation>? How many million people use Champlain in a year>? Elitism is the problem here, not people in Kayaks.

      • Erik Westberg

        They draw the water from a point far deeper than Berlin pond and then use a more expensive and advanced treatment plant, that’s how.

        • Jason Brisson

          South Hero municipal water draws at 30 ft down, 400 feet from shore. Their treatment would not need to be as advanced, nor as expensive, if municipalities like MONTPELIER were not dumping raw sewage into the Lake Champlain’s tributaries.

  • Eric Nuse

    I see H.6 did not move out of committee before cross over, so it appears to be dead for this year.

    • Mike Polhamus

      Hi Eric — good catch, H. 6 did not make it out of committee yet. Thanks for noting that. Charter changes like this are exempt from the crossover date, however. We’ve changed the story to make that clear.

  • Grant Sulham

    Closing the pond to humans doesn’t gurentee safety. There are many ways to get sick.

    Looked up oocysts.
    “Water sources near grazing areas are typically higher risk for crypto, but even pristine wilderness zones can see contamination from deer, goats, sheep, rodents or other animals.”

    Further: “person-to-person transmission of cryptosporidiosis infection may occur within family homes, day-care centers, hospitals, and in urban environments where population densities are high (USEPA, 1994). ”

    And “Three of the Cryptosporidium outbreaks were associated with motel swimming pools, and two were associated with community swimming pools. All five pools were filtered or chlorinated. ”

    There is a catch-22 here. Berlin Pond doesn’t have a high amount of human use. There appear to be others sources with a greater question npact. As example migrating waterfowl.

    The phrase “proper regulations” means the water can be used. I doesn’t mean a ban.

    Think the best question is how many cases of cryptosporidiosis have been linked to the city water. That answer would determine if there is a problem.

    • Neil Johnson

      Great to see some actual research. People have no clue how water systems work and what are reasonable assessments. People without any environmental knowledge or understanding of how nature works believe water is pristine in nature, like a bottle of avian Water. Don’t they realize all the animals that use, swim, drink, defecate/urinate, kill and eat each other in? And well water comes from the dirt ground? If any of them saw the inside of the pipe system that delivers water they would find it’s not like a bottle of water.

      This is where we have uninformed people driving the decision making a the same time thinking they are environmentalists, when really they don’t even understand the very basics of nature.

  • Rich Lachapelle

    “Montpelier residents have justifiably felt vulnerable to any number of threats to their health and safety, Kitzmiller said.” It doesn’t seem that the vulnerability of Montpelier’s water supply is any greater than the threat to any other water supply in Vermont. In today’s world, it is all about how people “feel” though. Kitzmiller also feels a special threat based on his perception (or paranoia) of how many Vermonters regard Montpelier? His response is to propose legal and possibly physical/parking barriers to prevent access by pesky humans, including the vast majority who intend no harm.

    But when there is a justified threat from foreign religious zealots who wish to gain access to our country for the purposes of doing us harm, the response from his party is to push for laws restricting the cooperation of local law enforcement. Does anyone else smell the hypocrisy here?

  • FM Warren

    Its more of a matter of privacy than a matter of principle !!

  • Jason Brisson

    Forget principles–look at perspective. If any of the municipalities that draw their water from Lake Champlain tried banning “swimming, boating, fishing and other activities” on that waterbody, would that fly? This case should be no different.

    • Neil Johnson

      Great point…..common sense is often discriminated against….soon they’ll be calling you names when the argument against common sense doesn’t hold weight.

  • Kevin Lawrence

    We can all have our principles as long as we support our VT Constitution. This town pollutes the Winooski River with sewage after every big storm, yet they feel the need to control the lives of those who would work hardest to protect the pristine nature of a resource owned by everyone in the state.

    • Neil Johnson

      Does pose a bit of dilemma for them huh? And us country folk have to spend $5,000 -$30,000 to upgrade a septic system when it fails or we add a bedroom and municipalities go without any improvements and modifications when pollution is rampant and additional people are added to the same system.

      THEN they ask everyone else in the state to pay for it. Just not right or remotely fair.

  • Bob Pierre


    I am from South Burlington, when is Montpelier going to stop dumping untreated sewage into the Winooski river? MINE and over 25% of the Vermont’s population gets their drinking water!

    Still waiting. It has only been 25+ years the State has told them to stop!

    Mike Polhamus
    Why don’t you ask him that? Is Montpelier “too good” for that?




    • Jason Brisson

      YES, YES, YES!!! Complaining about “potential” for pollution, versus the pollution they are currently causing and not addressing!

  • Bill Walsh

    I’ve been kayaking on Berlin Pond three times per week for three years and all I’ve seen from boaters and fishing folks is an utmost respect for the pond. We know how precious and sensitive the water is and are extremely appreciative that we’ve been granted access. I haven’t, however, ever seen Warren Kitzmiller at the pond.

    Geese cause more of a threat to the pond than humans and they’re increasing.

  • Trevor Lewis

    Champlain Water District, the largest source of drinking water in Vermont, which serves 70,000 people across 12 towns, draws its water supply from Lake Champlain. Lake Champlain receives flows from rivers which receive the outflows of municipal sewage systems (including Montpelier’s which overflows untreated during storms) in much of the western 2/3 of Vermont. Yet Champlain Water District has time after time won top national-level awards for water quality. If there were any slightest credibility to Montpelier’s claims that a modest amount of nonmotorized recreation on Berlin Pond represented even a vaguely credible threat to water quality and public health, then we should see an epidemic of death and pestilence ravaging the communities served by Champlain Water District which draws water from Lake Champlain. But we see no such thing. The ‘terrorism angle’ is ludicrously self-parodying (though unintentionally). Having peaceable recreators around might help disperse or report those evil terrorists.

    Montpelier already lost resoundingly with the environmental agencies, and then in the courts. This is petulant control-freak-ism, should be recognized as such, and be placed and left in the wastebasket for good.

    • Jason Brisson

      Spot on!

  • Graydon B. Stevens

    If Mr. Kitzmiller believes that ice fishing holes are used as toilets, perhaps the best way to protect bodies of water in Vermont is to ban Mr. Kitzmiller and his friends from access to our lakes and ponds.