Vermont Water Access and Water Rights (19-VT-a)
The policy in Vermont is to protect, regulate, and where necessary, control the water resources of the state in the public interest and for the general welfare. Water Resources Management Policy, 10 V.S.A § 901. The state is the trustee of its navigable waters, lakes, ponds, and groundwater. See Protection of Navigable Waters and Shorelands Policy, 10 V.S.A. § 1421; Management of Lakes and Ponds, 29 V.S.A. § 401; Groundwater Protection Policy, 10 V.S.A. § 1390.
Surface waters in Vermont are held in public trust. 10 V.S.A § 901. Surface waters include lakes, ponds, rivers, creeks, brooks, reservoirs, and wetlands. Surface Water Management Strategy. Surface water in Vermont is governed by a system of riparian rights. Johns v. Stevens, 3 Vt. 308, 315-16 (1830). Riparian rights attach to land through which “a stream of water flows.” Martin v. Bigelow, 2 Aik. 184 (1827); Davis v. Fuller, 12 Vt. 178, 198 (1840). A stream is defined as a “distinct channel…with well-defined banks, cut through the turf, and into the soil by the flowing of the water…” Hawley v. Sheldon, 64 Vt. 491, 493-94 (1892). Littoral rights are determined by reference to riparian principles. State v. Morse, 84 Vt. 387 (1911).
The Secretary of ANR is charged with shore land, river corridor, and buffer management and protection to encourage statewide planning regarding surface water-related habitat and pollution concerns. 10 V.S.A. § 1422. The Secretary of ANR has granted permitting and regulatory authority to the Watershed Management Division (WMD) of the DEC. In order to protect the natural flow of surface water, the WMD regulates activities that take place in or along a stream through its stream alteration permitting process. 10 V.S.A. §1001-1032; Stream Alteration Rule, CVR 12-030-022.
In addition, in order to protect the state’s lakes and ponds from degradation, the WMD also regulates lake and pond encroachments pursuant to 10 V.S.A. §§ 401-409. The WMD’s authority to regulate encroachments extends to public waters and the land lying thereunder, but not to land uses that may be ancillary to the encroachment. In re Kent Pond, No MLP-03-10, 8 (Vt. Water Res. Bd. 2004).
Groundwater in Vermont is also held in public trust. 10 V.S.A. § 1390. Groundwater is defined by statute as “water below the land surface, including springs.” 10 V.S.A. § 1416(2). A spring is “a place where water by natural forces usually issues from the ground.” Magoon v. Harris, 46 Vt. 264, 269 (1863). The Agency of Natural Resources (ANR) manages groundwater pursuant to the Groundwater Protection Act, 10 V.S.A. §§ 1390-1410. ANR has granted permitting and regulatory authority to the Drinking Water and Groundwater Protection Division (DWGPD) of the Department of Environmental Conservation (DEC), a department of ANR. The DWGPD regulates groundwater pursuant to 10 V.S.A. §§ 1390-1410 and the Groundwater Withdrawal Reporting and Permitting Requirements, CVR 12-030-020 § 24-101-513.
Water Access and Water Rights Process
19-VT-a.1 — Calculate Project Need
The developer will need to contact a water engineer/consultant to calculate the amount of water the project requires (e.g. construction, dust suppression, storage, etc.)
19-VT-a.2 — Identify Source of Water Supply
The developer, with the assistance of a water engineer/consultant, must locate an appropriate water supply source based on the project’s water needs.
19-VT-a.3 — Will the Project Use Surface Water?
If the project abuts surface water, water use is controlled by riparian principles. If the developer owns the lands touching the waterway they have satisfied the riparian right to use the water. Chatfield v. Wilson, 31 Vt. 358, 262-63 (1858). If the developer does not own the abutting land they may acquire riparian rights by grant. In Vermont a water right may be reserved by the grantor of riparian land, or may be conveyed in whole or in part separately for use on non-riparian land. Road v. Johnson, 26 Vt. 64, 71 (1853).
Without a clear indication of intent to the contrary, the transferred right is not restricted to any particular use, but rather to the quantity used at the time of the transfer. Adams v. Warner, 23 Vt. 395 (1851). Reasonable use is the only limit to the exercise of a riparian right. Lawrie v. Silsby, 76 Vt. 240, 253 (1904). Reasonable use is defined as the “benefit of each use…balanced against the harm caused to other riparians.” Snow v. Parsons, 28 Vt. 459, 460-64 (1856). However, riparian rights are subject to the public trust and an upstream riparian may not harm the rights of a riparian downstream. Boynton v. Gilman, 53 Vt. 17 (1880).
19-VT-a.4 to 19-VT-a.5 — Will the Project Change, Alter, or Modify a Perennial Stream?
A developer may need to obtain a Stream Alteration Permit and comply with the applicable reporting requirements if the project changes, alters, or modifies the course, current, or cross section of any water-course or designated outstanding resource waters, within or along the boundaries of Vermont either by movement, fill, or excavation of ten (10) cubic yards or more of instream material in any year. 10 V.S.A. §1021(a); Stream Alteration Rule, CVR 12-030-022 § 301(a). For more information, see:
19-VT-a.6 to 19-VT-a.7 — Will the Project Withdraw Groundwater?
If the project withdraws groundwater, the developer may need to comply with groundwater reporting requirements or may need a groundwater withdrawal permit. For more information regarding groundwater considerations, see:
19-VT-a.8 to 19-VT-a.10 — Will the Project Encroach Beyond the Mean Water Level of a Lake or Pond?
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- Water Resources Management Policy, 10 V.S.A § 901
- Protection of Navigable Waters and Shorelands Policy, 10 V.S.A. § 1421
- Management of Lakes and Ponds, 10 V.S.A. §§ 401-409
- Groundwater Protection Act, 10 V.S.A. §§ 1390-1410
- Regulation of Stream Flow, 10 V.S.A. §1001-1032
- Stream Alteration Rule, CVR 12-030-022
- Groundwater Withdrawal Reporting and Permitting Requirements, CVR 12-030-020
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- Surface Water Management Strategy
- Stream Alteration Permit
- Johns v. Stevens, 3 Vt. 308, 315-16 (1830)
- Martin v. Bigelow, 2 Aik. 184 (1827)
- Davis v. Fuller, 12 Vt. 178, 198 (1840)
- Hawley v. Sheldon, 64 Vt. 491, 493-94 (1892)
- State v. Morse, 84 Vt. 387 (1911)
- In re Kent Pond, No MLP-03-10, 8 (Vt. Water Res. Bd. 2004)
- Magoon v. Harris, 46 Vt. 264, 269 (1863)
- Chatfield v. Wilson, 31 Vt. 358, 262-63 (1858)
- Lawrie v. Silsby, 76 Vt. 240, 253 (1904)
- Snow v. Parsons, 28 Vt. 459, 460-64 (1856)
- Boynton v. Gilman, 53 Vt. 17 (1880)
- Groundwater Quantity Regulation in Vermont: A Path Forward
- The Law of Water: An Introduction of Vermont Water Law
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