The New York Times had a nice story, “Bottling Plan Pushes Groundwater to Center Stage in Vermont,” that features the recent legislation in Vermont protecting groundwater as part of the state’s public trust. The Vermont legislation was motivated in part by growing concerns over bottled water, which often comes from groundwater that feeds small potentially vulnerable springs. The legislation is notable because it states that “groundwater resources of [Vermont] are held in trust for the public.” (See 10 V.S.A. § 1390(5)).
The article claims that in “making the state’s groundwater a public trust,” Vermont has joined “the company of a growing number of states.” The article further claims that “Vermont is a relative latecomer in adopting a public-trust status for groundwater…” Unfortunately, both of these claims are at best misleading. One of my former students, Oday Salim (now an LL.M. student in Lewis & Clark’s top-rated environmental law program) spent part of his summer doing a comprehensive survey of state groundwater law and the public trust doctrine for the Great Lakes Environmental Law Center (lucky him). The research clearly shows that only a handful of states, most notably California and Hawaii, have expanded the public trust doctrine to cover groundwater. Regardless of the scientific justifications and legal merits of protecting groundwater through the public trust doctrine, most states have not done so. Further, no U.S. court has ever ruled that bottling and selling groundwater violates the public trust doctrine, another fact ignored by the article.
Compounding the error, the article then quotes Maude Barlow, “a Canadian crusader against bottled water,” who claims that reliance on the public trust doctrine to protect groundwater prepares the state for “the day when demand for groundwater outstrips supply.” I love Maude Barlow as much as the next guy, even though she sometimes gets her facts wrong. But Barlow’s passion for the ideology of water as a public trust puts unjustified faith in how courts actually apply the doctrine. It’s too bad, because the real story behind the Vermont legislation is the more proven way of protecting water resources through environmental science, water conservation, and proactive management.