The Vermont Institute for Government The Law of Water

An Introduction to Vermont Water Law

As happens in other places, A Fluid Theory information in deciding what you water in Vermont runs, falls, Who owns water? If it flows can try to do with it. floods, percolates up from the past or through your land, or you The Water Resources Board clas- earth, freezes in the winter, and share a water boundary with sifies waters and regulates the use on quiet ponds lies still in the late others, on a pond or lake, it doesn’t of all public waters. The Agency evening. Wherever it is found, really belong to you, the way land of Natural Resources issues per- there is the law, ready and adapt- belongs to you, or the trees. You mits, and appeals are heard by the able to every human conflict, to Board, which has issued a body of delineate the rights of competing can use it. You can use the water under the land, and the water that decisions that form an important interests and resolve the disputes canon of water law in Vermont (dif- of neighbors and other affected rises in a spring. ferent from a water cannon, but people. Even without owning shorefront more powerful in some instances). This pamphlet attempts to do property, you can fish and boat in The Vermont Supreme Court has something dangerously optimis- many streams and lakes of tic: to provide the landowner, Vermont. These are public waters, also decided dozens of important neighbor, recreationist, and entre- but defining precisely when waters cases on the water rights and re- preneur with a look at the laws are public is not always easy. sponsibilities of landowners. affecting water in Vermont. It There are limits. On The Army Corps of Engi- neers is active in enforc- might be of interest to you if you some small lakes and Water has own land on a brook or river, a ing the law of water in ponds, for instance, jet been lake or pond, live downslope of skis are forbidden. You Vermont, whenever a wet- anybody else, or just want to fish can’t fish for some around land is threatened, when in peace on a Saturday morning. species in all seasons. In longer than fill is added or removed It would be foolish to promise this from a stream bed, or some places you can’t law, but no brochure will say everything you swim or fish, because a when a project has an want or need to know or substi- body of water is a public culture ever impact on rivers and tute for the careful advice of an drinking supply. You lasted long lakes. Federal laws, in- attorney, as so much depends on can’t use water as a way cluding those guarantee- the facts of a case. without of ridding your land of ing clean water, also af- The source of the material waste or fill in a wetland some well- fect water use in Vermont. described here includes the (without a permit). Water established If you looked for an over- statutes and common law of has a public quality to it, riding principle of the law Vermont. It is principally an laws on the of water, it might come indigenous creation of generations and you need to respect that. subject. down to this: that you of legislators and judges, and the can’t use water if by do- troubled landowners who brought In Vermont, all ing so you injure others. their water problems to be heard waters are classified. You have rights—rivers before a legislative hearing or a Class A water is everything above and streams give rise to “riparian” trial. Much of Vermont’s common 2,500’ as well as water used for law is grounded on the work of old drinking purposes. It gets the rights; lakes and ponds give rise English judges, which is part of highest protections. Class B water to “littoral” rights—but they are our common inheritance from is suitable for bathing and circumscribed by the public inter- Britain, even though Vermont recreation. Everything else is est. As with everything, reason- itself was ruled by English law for Class C. Knowing the ableness is the right attitude, and only a handful of troubled years, classification of the water on or caution a good companion in any when many Vermonters refused to near your land is essential conflict. continued on page 2 PAGE 1 accordingly, even if the course of Stream Boundaries. continued from page 1 If your deed describes a the stream is changed. boundary of your land as along a An early Vermont case acknowledge its authority. English law is based on Roman brook or river, and is not more recognized the right of a law, and that on earlier specific than that, the law landowner to the wood that drifts down a stream past his property, precedents, back before history. presumes you own to the middle, Water has been around longer or thread, of the stream. If the when a third party tried to collect the logs. The landowner’s claim than law, but no culture ever river jumps its banks and shifts lasted long without some well- was superior to the intruder’s, its course, your boundary may established laws on the subject. inferior to the original owner of move as well, along the new The brook that burbles so thread. the logs, if identified. sweetly in September took out my If your deed describes your garage last spring. Salt from the property line as along the shore Flowage town plow ruined my artesian of the stream, however, you own Early Vermonters attempted well. The river is oily and filled only to the water’s edge. The to use water power to grind their with sawdust and trash. The particular words of the deed are grist or cut their logs. Industrious storm drain backed up and filled definitive of your rights. settlers would dam a stream and my basement with ugliness. My Don’t try to change the thread. channel the runoff to move a neighbor built a peninsula of rocks and dirt out into the pond If you attempt to dredge the water wheel, buying easements to next to our beach. I want to drain use abutting land for channel on your side of the that wet part of my field to build stream, you may be in trouble. containment. Dozens of court a new home there. Your neighbor may sue you for cases followed by those who You might be interested in damages, and the state and suffered from too little or too knowing what the law has to say federal government may come much water. Then came in these situations. Obviously after you for unauthorized work hydroelectric dams, and water you can’t just do something with in the stream bed. became Vermont’s “white coal.” a backhoe or a shovel, an angry Today the battle line is drawn phone call or a lot of harsh words, Accretion, Avulsion and differently, with citizen groups before thinking it through. You’ll attempting to remove dams to need to know what the law is. Erosion restore fisheries and power “Accretion” is the gradual and companies opposing their efforts. imperceptible accumulation of How fast water comes down, how land by natural causes— much can be contained, are “alluvion” is what the deposits are issues still with us today. there have been colossal struggles called—along the banks of a body Upland residents may not between developers and citizens of water. “Avulsion” is the sudden increase or decrease the flow of a over how this can be removal of soil from the land of stream if this creates substantial accomplished. State government one owner and its deposit on land injury to anyone, including the has regulated changes in stream of another. “Erosion” is the public. Government is not flow, and encouraged the use of gradual eating away of soil. immune from this rule. A few reservoirs and artificial ponds for Erosion on one side of the stream years ago, a court found a town snowmaking. often leads to accretion of alluvion liable when a plugged culvert on the other bank. backed up water onto private Lake Boundaries. Grains of sand add up. The property (outside the public right Vermont has no tidal waters, general rule is that land lost and of way). A town has a duty to not for 10,000 years at least, but land gained due to accretion is a maintain culverts on all class it has plenty of ponds and lakes, kind of natural conveyance and three and four town highways. and one lake we regard as great— that title shifts from the one Adjacent landowners may not fill Lake Champlain. These waters landowner to the other as this in swales or ditches along a road also have their rules of conduct. happens without the need for without permission of the A boundary described as along deeds or claims of adverse selectboard. the bank, shore, or margin of a possession or acquiescence. Ski areas need water for private lake or pond goes only to When it happens as a result of a snowmaking. In recent years, the water’s edge, and the flood (or freshet), however, landowner has no claim to any boundaries may not change PAGE 2 land under water. Owners of users are bound to treat it as a municipality and appropriated for shoreland along Lake Champlain public trust. You might not be public use, over the objections of or other public waters usually own alone on your lawnchair on your the landowner, who is due to the average low water mark, new penisula, if you’re allowed to reasonable compensation for the although finding that mark may build it at all. taking. A municipality may not, not be easy, as it is a number that however, condemn water outside changes over time, as any average Law of the Sea. its boundaries. does. A sailboat docked at an island The location of the average low in Lake Champlain during rough Permits. water mark became important to seas. The caretaker untied the When public interests are a few duck hunters a few years ropes, and the boat was wrecked. involved, as they are with most ago. During high water they The landowner who had ordered changes to the land that affect floated their boat into a wetland the caretaker to keep all intruders water, there is government to in Swanton past signs prohibiting off the island paid damages protect the public interest. From trespassing. The Vermont following a law suit. The usual the siting of a dam to the paving Supreme Court decided they were laws of trespass are suspended of a field for parking (creating in the wrong because they were during emergencies. artificial channels for runoff), it hunting on enclosed lands. The state licenses motor may seem that nearly everything Section 67 of the Vermont boats, and the Coast Guard and you do with water beyond hosing Constitution promises, “The the State Police enforce rules on your garden requires a permit. inhabitants of this State shall safety on the larger bodies of Don’t take this lightly. If you want have liberty in seasonable times, water in Vermont, including a to change the moving or still to hunt and fowl on the lands they prohibition against boating while waters on your property, call hold, and on other lands not intoxicated. Regattas also need somebody first. Checking with inclosed, and in like manner to special permits from the state. the right office is essential to avoid fish in all boatable and other In Vermont, you can be held penalties and ensure the change waters (not private property) liable for a fine for failing to stop is done properly. under proper regulations, to be to help people in need, on land or At the local level, there is the made and provided by the General on the water. The rule is to help zoning permit, required for any Assembly.” “Boatable waters” is to the extent it can be rendered change of use of land, movement unique to Vermont; if you look in without danger or peril to yourself of earth or water, or erection of legal dictionaries, you’ll find only or without interference with structures. Don’t build a bridge Vermont cases cited for the important duties owed to others. over a stream, reroute a swale, or definition. If you do help, you can’t be sued place a dock in the lake without So why weren’t those hunters for ordinary negligence if damage checking with the zoning allowed to float into that wetland, occurs during your attempt to administrator first. if the waters were boatable (even help. Then call the regional office of in a few inches of water)? Because the Agency of Natural Resources. the hunters were hunting on Springs. Imagining what permits you need enclosed private property. They isn’t the right policy. Call them were also beyond the average low Percolating waters are ours to use and appropriate, as at least before you think about draining water mark. Had high water a wetland (or even what you think continued for a sufficient time, the one large bottling company has done in Vermont. Often one is a wet field) or relining a ditch average low water mark might that has been eroded by spring change and the waters might be neighbor owns spring rights on the lands of another. Even if runoff. Let the state officials tell suitable for highways as public you in writing you don’t need a easements. unused for years, this right continues to benefit one permit before you act, just to be Shoreland property is dear, sure. and some think they might extend landowner and burden another, until it is expressly abandoned or You know how it works. The their beach or domain by filling. law is full of don’ts. Don’t put Be careful with this project. Filled quitclaimed, because this is a right in the land itself. algaecides or pesticides in water land belongs to the public, as a to kill plants you find offensive. railway company discovered a few Just as land, a water source can be condemned by a Don’t scuba dive down to ancient years ago at the Burlington vessels in the lake and collect waterfront. As public land, its artifacts for your home museum. PAGE 3 Don’t open the flashboard on the then you are sharing it with What are you going to do with pond to lower the level to repair others, and the public itself may water? It just doesn’t want to your dock. Don’t empty your have a right to it. obey the human will. The riprap swimming pool so that the water doesn’t hold, the fields are runs onto your neighbor’s lawn. Last Thoughts flooded, the bridges wash out. A Don’t drive your old car into the We didn’t succeed in telling river changes course. Sometimes quarry to see how fast it sinks. you everything about the law of there’s too much of it; sometimes Don’t pull out the beaver dam that water, but we tried. Every idea there’s a drought, and even deep threatens to flood your basement. expressed here demands further wells give up. Law is different. It Drilling your own well doesn’t research before you start to act flows on, year after year, rarely require a permit, but sharing the in reliance on it, and no court will jumping its banks, observing the water you take from the ground find this pamphlet authority for a ancient rules, discerning the with others, whether you charge contrary conclusion. These cases rights of landowners and the for it or not, may require a public turn on their facts, on the public. You can enjoy the water, water supply permit from the intentions of the parties and their and never think of the law, but Agency of Natural Resources. behavior, but the basic ideas are it’s there, waiting until you need Nature knows best, of course, sound. it. but common sense can help. You may object to land use controls on your land or reel from the news that you need an Act 250 permit, A Word about The Vermont Institute for Government a water discharge permit, a stream alteration permit, a permit The Vermont Institute for Government (VIG) is a nonprofit corporation dedicated for algaecides, or a wetlands to improving educational opportunities for local officials and the public on how permit, but if the law requires it, government works. It consists of representatives from each of the major groups in you proceed at your peril (and Vermont that offer such training. maybe those living downstream from you) if you act first and then The VIG has published other pamphlets that may be of use or interest to you. The include: ask questions of officials. • The Meeting Will Come to Order, covering town meeting procedures. • Changing the World, about how to increase your effectiveness in meetings Public Easements. of local and state boards and commissions. A few years ago a landowner • Are you Appealing?, which covers the tax grievance and appeal processes at tried to prevent people from using the local level. a dam as a swimming hole that • Isn’t This My Land?, relating to local planning and zoning. had been popular for decades. He • The Vermont Citizenship Comprehesive Examination, a fun test of basic closed down the path to the water. information a citizen ought to know about Vermont government. The Vermont Supreme Court • The Public Right of Way and You, covering town highways. ruled this a public easement, a • How and why to Read a Town Report, it can tell you a great deal about your town. common law dedication of the • It’s Your Turn: A Call to Local Office, how to get involved in your local land and water for public government. recreational purposes, and the • Reforming Local Government by Charter, how to chang your local landowner had to take down the government. gate. A few years later the dam • The Development Review Board, what’s involved in creating a develoment washed away during a spring review board. freshet, and the landowner • The Law of Trees, how the law treats trees and describes your rights. announced the public easement Contact the VIG office for free copies of any of these pamphlets or to learn more had ended, only to be told again about VIG. by the high court that people still had a right to use the path. Vermont Institute for Government By this time, you should be 617 Comstock Rd. STE. 5 getting the idea that water isn’t Berlin, Vermont 05602-9194 private property except in very 802-223-2389 limited circumstances. If it flows through or borders your land, 1/01 PAGE 4