Background

In 2008, the Vermont legislature substantially revised its groundwater protection laws. Historically, the common law doctrine of absolute ownership governed groundwater. However, in 1985 it was replaced by the more modern correlative rights doctrine. Vermont’s groundwater laws changed again when Vt. Stat. Ann. tit. 10, § 1390(5) (West 2008) was enacted, designating groundwater as a public trust resource. As a result, groundwater now must be managed for the benefit of all Vermont citizens. In 2011 the Vermont Environmental Court (“court”) interpreted this statute for the first time when it examined the final certification of Omya Inc.’s (“Omya”) solid waste facility. While the court did not addresses every question the 2008 statute presents, the court established a baseline context in which to examine groundwater, both quantity and quality needs to be addressed.

Environmental Court’s Interpretation

In Omya Solid Waste Facility Final Certification, No. 69-6-10 Vtec., 2011 WL 1055575, (Vt. Feb. 28, 2011), Omya applied to The Vermont Agency of Natural Resources (“ANR”) for a 5-year, final certification of a lined tailings disposal facility, a solid waste permit. Omya operates a calcium carbonate processing facility and the groundwater within the site has tested for elevated levels of iron, manganese, arsenic, and aminoethylethanolamine. ANR granted Omya’s application for a final certification based on the requirements set forth in its 2005 Groundwater Protection Rule and Strategy (“2005 Rule”). The Appellant, concerned about the disposal facility, appealed the ANR decision to grant the final certification.

The court, in a decision and order on motion for summary judgment, determined whether the final certification issued by ANR took into account the new public trust statute, Vt. Stat. Ann. tit. 10 § 1390(5). The court first examined what the public trust doctrine required for a groundwater analysis. Looking at the plain meaning and relationship to related sections, the court found that the public trust is not limited to solely managing groundwater quantity. The public trust should also manage groundwater quality. Next, the court looked at the 2005 Rule used to issue the final certification to see if ANR took into consideration the public trust doctrine with regards to groundwater quantity and quality. Because the 2005 Rule was created before Vt. Stat. Ann. Tit. 10 § 1390, the court held that use of the 2005 Rule is not sufficient to ensure that ANR is carrying out its public trust responsibilities. The court, however, did not find the 2005 Rule to explicitly violate Vt. Stat. Ann. Tit. 10 § 1390.

After the summary judgment decision issued by the court, the Appellants submitted a motion for clarification, asking if the decision required ANR to develop a new policy for certification. The court clarified its original decision and stated that ANR had the responsibility to develop the process of how to perform a public trust analysis. The court only determined that ANR’s 2005 Rules had not specifically considered groundwater as within public trust and therefore must be revisited. This decision, however, did not require that the final certification result be changed or the 2005 rule be changed.

In July 2011 ANR finalized an interim procedure for implementing the new public trust doctrine for groundwater called the Agency of Natural Resources, Interim Procedure for Implementation of Groundwater Public Trust Principles for Groundwater Quality Summary of Changes (July 20, 2011). The interim procedure recognizes that the ANR needed to protect both quantity and quality of groundwater with a dynamic set of rules designed to react to changes in public needs. Activities are now categorized into two tiers, recognizing that some activities are more harmful to groundwater then others. Tier I activities are high-risk activities that require a more stringent permitting process and a public benefit showing. Tier II activities pose a much lower risk to groundwater and therefore the permitting process is much easier. Tier II activities also include remedial activities directed to contaminated sites. Additionally, ANR set up a public comment process for participation in the permitting process.

Effects

Vermont, by identifying groundwater as within the public trust doctrine, is trying to balance public interest and individual property rights for an ever more important natural resource. The public trust doctrine allows for environmental concerns to be addressed with an eye towards future generations. This type of consideration is necessary for important and vital natural resources like water. Interpreting a broad law like Vt. Stat. Ann. Tit. 10 § 1390, however, has its own unique challenges and it will take years to generate a clear picture of how protecting groundwater, as part of the public trust, will be done through Vermont’s legal system. It took three years from the time the statute was enacted for a court to be faced with a decision where it needed to interpret the statute, and additional administrative action is still needed. While the public trust doctrine may take some time to fully realize the scope of protections, future generations should be better protected.

The extent of a public trust doctrine is determined by a state-to-state basis; therefore, Vermont can serve as a basis for other states that wish to implement similar groundwater policies. Colorado, for example, though a prior appropriation state, could easily work those policies into any public trust statute. Implementing a public trust to protect groundwater will not change groundwater laws overnight as Vermont has shown. Most public trust laws can be worked into a state’s existing legal framework.