The Benefits of Declaring Groundwater a Public Trust

Updated - January 2008 

Unlike our neighboring states, Vermont has no program in place to manage our essential groundwater resources. In 2006, however, the Legislature passed a bill creating a task force to analyze the issue. The governor-appointed task force is now hard at work, hearing testimony and looking closely at several key groundwater protection strategies, including:

• The creation of comprehensive maps of the state’s groundwater resources and a schedule for completing groundwater mapping;
• The funding sources needed for groundwater mapping;
• The creation of a statewide program for addressing groundwater withdrawals;
• The adoption of the Public Trust Doctrine to declare that surface water and groundwater are held and managed in the public trust.

Arguably the most controversial issue the task force and state will tackle is whether groundwater should be declared a public trust resource. Such a declaration does not preclude use of the resource. It simply establishes a framework that says that groundwater is a vital resource that exists to benefit all Vermonters and that no individual can own the groundwater. Essentially, the public trust creates a framework that allows diverse stakeholders to use and withdraw the resource, but as the bottom line, puts public interest over private interest.

At the October meeting, the Task Force heard testimony from experts on the public trust, including law professors, the Attorney General’s office, the Agency of Natural Resources and a former lawmaker from New Hampshire who was involved in the drafting of New Hampshire’s groundwater law, which declares groundwater to be a public trust resource. Each of the witnesses agreed that public trust declaration will not result in a taking of property. They also concurred that currently groundwater in Vermont is not owned by individuals.

These findings, along with the fact that groundwater is an invaluable Vermont natural resource, support VNRC’s belief that any comprehensive groundwater program must be built on the foundation that groundwater is a common resource that benefits all Vermonters. The resource can and should be used for its many diverse and important purposes. But to ensure its long-term quality, quantity, and viability, Vermont must take the necessary steps. Declaring groundwater a public trust resource is one of those important steps.

With VNRC’s seat as the only environmental representative on the task force, we continue to press hard for a strong program and for the public trust declaration.

Help us ensure Vermont takes the vital steps necessary to safeguard this invaluable resource. To get involved in this important campaign and take action, contact Outreach Director Johanna Miller at  jmiller@vnrc.org or 802-223-2328 ext. 112. Or, for more information, contact VNRC’s Water Program Director Jon Groveman at jgroveman@vnrc.org or 802-223-2328 ext 119.