Vermont Water Access and Water Rights Overview (19-VT-a)
In Vermont, the state is the trustee of its navigable waters, lakes, ponds, and groundwater. Vt. Stat. Ann. tit. 10 § 1421; Management of Lakes and Ponds, 29 V.S.A. § 401; Vt. Stat. Ann. tit. 10 § 1390. The ANR is charged with the management and protection of surface and groundwater resources in Vermont in the public interest and for the general welfare. Vt. Stat. Ann. tit. 10§ 1422; Vt. Stat. Ann. tit. 10 § 901; Vt. Stat. Ann. tit. 10 §§ 1390-1410.
If the project abuts surface water, water use is controlled by riparian principles. Surface waters in Vermont are held in public trust and include lakes, ponds, rivers, creeks, brooks, reservoirs, and wetlands. 10 V.S.A § 901; Johns v. Stevens, 3 Vt. 308, 315-16 (1830); Surface Water Management Strategy. 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). The ANR has delegated authority to the WMD to protect and maintain the quality of Vermont's surface water resources by regulating activities that take place in or along a streams or encroach on lakes and ponds. Vt. Stat. Ann. tit. 10 §1001-1032; Stream Alteration Rule, CVR 12-030-022; Vt. Stat. Ann. tit. 10 §§ 401-409.Groundwater in Vermont is also held in public trust. Vt. Stat. Ann. tit. 10 § 1390. Groundwater is defined by statute as “water below the land surface, including springs.” Vt. Stat. Ann. tit. 10 § 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 ANR has granted permitting and regulatory authority over groundwater resources to the DWGPD pursuant to Vt. Stat. Ann. tit. 10 §§ 1390-1410 and the Vt. Code R. 12-030-020 § 24-101-513.
Water Access and Water Rights Overview 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?
A developer may need to obtain a Riparian Right-by-Grant, from an owner of riparian land to use surface water which abuts land that the developer does not own. 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 from the Vermont Watershed Management Division (WMD) 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. Vt. Stat. Ann. tit. 10 §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 from the Vermont Drinking Water and Groundwater Protection Division (DWGPD). 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?
The developer may need to obtain a Individual Lake Encroachment Permit from the WMD for any encroachment beyond the mean water level of a lake or pond. Vt. Stat. Ann. tit. 10 § 401. For more information, see:
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- Vermont - Vt. Stat. Ann. tit. 10 § 901, Water Resources Management Policy
- Vermont - Vt. Stat. Ann. tit. 10 § 1421, Protection of Navigable Waters and Shorelands
- Vermont - Vt. Stat. Ann. tit. 10 §§ 401-409, Management of Lakes and Ponds
- Vermont - Vt. Stat. Ann. tit. 10 §§ 1390-1410, Groundwater Protection Act
- Vermont - Vt. Stat. Ann. tit. 10 §1001-1032, Regulation of Stream Flow
- Vermont - Vt. Code R. § 12-030-022, Vermont Stream Alteration Rule
- Vermont - Vt. Code R. § 12-030-020, Groundwater Withdrawal Reporting and Permitting Requirements
- Vermont Department of Environmental Conservation Surface Water Management Strategy
- Vermont - 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
- Vermont - The Law of Water: An Introduction of Vermont Water Law
- Vermont - Groundwater Withdrawal Permit