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A SLIPPERY SKI SLOPE: APPROVAL OF VERMONT’S FIRST INTERBASIN WATER TRANSFER ILLUSTRATES THE INADEQUACIES IN RIPARIANISM AND REGULATORY CONTROL OF SURFACE WATER IN OUR CHANGING CLIMATE

A SLIPPERY SKI SLOPE: APPROVAL OF VERMONT’S FIRST INTERBASIN WATER TRANSFER ILLUSTRATES THE INADEQUACIES IN RIPARIANISM AND REGULATORY CONTROL OF SURFACE WATER IN OUR CHANGING CLIMATE

Kelsey Schweitzer

This year, Vermont ski area Pico Mountain (Pico) broke ground on a project ramping up its snowmaking.[1] In the past, Pico’s snowmaking has suffered from running out of water when their “snowmaking needs are greatest.” Starting this 2019-2020 winter season, Killington Mountain Resort (Killington), another Vermont skiing destination, will be piping water from Killington’s water sources directly to the privately owned Pico ski area snowmaking pond (Killington-Pico snowmaking interconnect).[2] Vermont’s Department of Environmental Conservation (the Department) approved this 2.1 million dollar snowmaking project on September 17, 2019.[3] With access to Killington’s water supply, Pico will be able to “keep making snow without pause” ending the problem that has limited Pico’s snowmaking in the past: “running out of water when snowmaking needs are greatest.”[4] This investment is only the most recent of Pico’s improvements to take place since Killington acquired the ski area in 1997.[5] Snowmaking is not new to the ski-industry in Vermont, but becoming more quintessential to the survival and longevity of the season.[6]

Outdoor recreation is a huge industry in Vermont.[7]  Skiing, biking, hiking, golfing, leaf peeping: people come from all over to enjoy the splendors of Vermont’s wild.[8] In 2013, Vermont ski areas leased on public lands generated 5.3 million dollars in property tax revenue for the state’s education fund.[9] The revenues generated from these lease agreements go to the Vermont Department of Forests, Parks and Recreation’s Forest Parks Revolving Fund.[10] Of that revenue, Killington Mountain Resort generated nearly 1.2 million dollars, or 41 percent of the total revenue generated.[11] Resources that encourage Vermont’s tourism economy can be good for the state, but they need to be managed appropriately.

This Killington-Pico snowmaking interconnect takes water from Killington’s state-leased land in the Connecticut River Drainage Basin and moves it to Pico, a privately owned ski resort in the Lake Champlain Drainage Basin.[12] To get approved for the interbasin transfer, the Mountains had to obtain nearly every surface water regulatory permit that the Department issues: snowmaking,[13] stream alteration,[14] lake encroachment,[15] Act 250,[16] and 401/404 clean water certifications.[17] Interbasin water transfers have potential for major downstream implications, yet despite the Killington-Pico snowmaking interconnect requiring nearly every permit, Vermont’s regulatory structure does not contemplate such transfers.[18] In granting these permits, this element of the transfer was mentioned as a second thought, rolled into the Water Quality certification approval.[19] By issuing these permits, the Department within Vermont’s Agency of Natural Resources (the Agency) approved what appears to be Vermont’s first major interbasin transfer.[20]

Currently, Vermont’s surface water diversions are largely unplanned, uncoordinated, and uncontrolled.[21] The Department has implemented a piecemeal regulatory structure that does not regulate most surface water diversions and does not contemplate interbasin transfers. The regulations that are in effect are mostly limited to water quality considerations, rather than water quantity. When conflicts regarding water quantity (and quality) do arise, the common law doctrine of reasonable use riparianism does provide some retroactive control for Vermont’s surface waters.[22] However, this retroactive doctrine is rightly criticized for being unpredictable, and will likely prove unusable when historically wet climates begin to experience scarcity.[23] The need for more proactive regulation grows increasingly apparent as need, technology, standards of living, and climate change limit access to the resource and alter what is considered a reasonable use.[24]

Outdoor recreation is not the only water heavy burden on the state. For example, Vermont takes great pride in its dairy industry and its thriving agricultural scene.[25] The hemp industry is on the rise, and cannabis is waiting at the gate to enter.[26] Domestic users, and other businesses and industries depend on this vital resource as well.[27] Finally, even just domestic use may increase the burden on Vermont’s water supply if the population grows.[28] Currently, parts of the state struggle to maintain viable ground water supply to their homes, and as these problems snowball, people may turn to the use of surface waters to meet their needs.[29] In the face of our changing climate, it is of increasing importance that Vermont develops a regulatory scheme that safely manages all surface water withdrawals for industry and public use and enjoyment, now and for the future.[30]

While the Northeast is experiencing greater amounts of precipitation, these events are increasingly arriving in concentrated precipitation events, rather than the frequent, but moderate precipitation typical of the region.[31] These concentrated precipitation events tend to occur in the winter and spring, evaporating before the hotter, drier months in summer.[32] Forecasts suggest that these changing precipitation patterns could result in greater water scarcity in Vermont, especially during the summer.[33]

            This Note discusses the social, political, and biological need for regulating Vermont’s surface water diversions and transfers through Regulated Riparianism. Section I introduces the problem, both present and upcoming. Vermont currently has both statutory and common law doctrines affecting how people and business can withdraw water.[34] Section II discusses Vermont’s current legal framework and illustrates how the Killington-Pico snowmaking interconnect helped float its shortcomings to the surface.[35] These shortcomings have created both an intrinsic and legal hole that needs to be better understood so that it can be remedied. Section III proposes steps forward to help Vermont identify the extent of the problem and looks to surrounding riparian states and the Model Regulated Riparianism Code to suggest the idyllic future of Vermont’s management of surface water.

[1] New water source at Pico Mountain approved; major snowmaking upgrades underway, VTDigger (Sept. 23, 2019) https://vtdigger.org/2019/09/23/new-water-source-at-pico-mountain-approved-major-snowmaking-upgrades-underway/ [hereinafter New Water Source]. Resorts make snow by pumping water from ponds, rivers, or lakes through snow guns. Roundtop Mountain Resort, How We Make Snow, http://www.skiroundtop.com/how-we-make-snow (last visited Jan. 20, 2020). The snow guns use compressed air or fans to propel the water into the air on cold days. Id. The water freezes and falls on the slopes as icy snow. Id. Snowmaking requires the intensive use of water resources. James MacDonald, The Real Problem with Artificial Snow, JSTOR Daily (Mar. 2, 2018) https://daily.jstor.org/the-real-problem-with-artificial-snow/. To cover a 200 by 200 foot stretch of a ski run with just 6 inches of snow requires 74,600 gallons of water. SMI snowmakers, Snowmaking Basics, How is Snow Made?, http://www.snowmakers.com/snowmaking-basic.html (last visited Oct. 21, 2019). Snowmaking also requires a substantial energy budget, further burdening competing energy uses as global temperatures rise. Id.

[2] Jeremy Davis, The History of Skiing in Vermont, Vermonter, http://vermonter.com/history-of-vermont-skiing/ (last visited Sept. 27, 2019).

[3] New Water Source, supra note 1.

[4] Pico Mountain, Mountain Improvements (last visited Oct. 23, 2019) https://www.picomountain.com/the-mountain/mountain-info/mountain-improvements [hereinafter Pico Improvements].

[5] Davis, supra note 2.

[6] Jeremy Davis, The History of Vermont Skiing: One Hundred Years of Growth, New England Lost Ski Areas Project, (Apr. 20, 1998) http://www.nelsap.org/vt/history.html.

[7] A Review and Comparative Assessment of the Vermont Ski Area Land Lease Fee Structure, Economic & Policy Resources, Inc. (2007) https://auditor.vermont.gov/sites/auditor/files/files/reports/ski-leases/EPR-Report-Ski-Leases.pdf.

[8] Think Vermont, Tourism & Outdoor Recreation, Vermont.gov, https://www.thinkvermont.com/tourism-outdoor-recreation/ (last visited Mar. 5, 2020).

[9] Douglas R. Hoffer, Report to the Vermont Legislature and Agency of Natural Resources: State Land Leases Boost Ski Industry, but are Dated and Inconsistent, VT State Auditor, (2015),

http://legislature.vermont.gov/assets/Legislative-Reports/Final-SAO-Report-on-Ski-Resort-Leases.pdf.

[10] Id.

[11]  Id. In total, the seven state leased ski areas generated 2,896,271 million dollars for Vermont’s Department of Forests, Parks and Recreation. Id.

[12] Dep’t of Envtl Conservation, Basin 10 – Basin Planning for the Watersheds Drained by the Black & Ottauquechee Rivers, Agency Nat’l Res, https://dec.vermont.gov/watershed/map/basin-planning/basin10 (last visited September 26, 2019) [hereinafter Basin 10]; Pico Peak, Rutland, VT, City-Data, http://www.city-data.com/articles/Pico-Peak-Rutland-VT.html (Last Visited Sept. 26, 2019) [hereinafter City-Data]; USGS Feature Detail Report for: Pico Peak, (Oct. 20, 1980), https://geonames.usgs.gov/apex/f?p=gnispq:3:0::NO::P3_FID:1461270

[13] Water Withdrawals for Snowmaking, 10 V.S.A. §§ 1031–1032 (2019).

[14] Alteration of Streams, 10 V.S.A. §§ 1021–1027 (2019).

[15] Management of Lakes and Ponds, 29 V.S.A. §§ 401–410 (2019).

[16] State Land Use and Development, 10 V.S.A. § 6001–6093 (2020).

[17] Clean Water Act, 33 U.S.C. § 1251 (2019), State Water Quality Policy, 10 V.S.A. § 1250 (2019).

[18] See supra notes 13–17 (uncovering that none of this statutes consider interbasin water transfers).

[19] VT Dep’t of Envtl. Conservation Watershed Mgmt. Div., Authorization to Conduct Stream Alteration Activities Pursuant to Section C.2.2, and C.2.3 of the Vermont Stream Alteration General Permit, (Sept. 12, 2019), https://anrweb.vt.gov/ANR/vtANR/Act250SearchResults.aspx?Num=1R0813-9 (using the word “interconnection” to describe the snowmaking system).

[20] Id. The regulations managing surface water diversions includes a de minimus exception that makes the vast majority of surface water withdrawals go completely unregulated and under the radar.

[21] See 10 V.S.A. §§ 1031–1032; see also 10 V.S.A. §§ 6081–6093.

[22] See generally Snow v. Parsons, 28 Vt. 459 (1856) (starting the foundation of Vermont’s reasonable use riparianism). Vermont’s surface waters in lakes and ponds are managed under a different common law doctrine, the Public Trust Doctrine. See generally City of Montpelier v. Barnett, 49 A.3d 120 (2012) (applying the Public Trust Doctrine to protect the waters of a lake held in the public trust).

[23] Robert H. Abrams & Latravia Smith, Water Rights and Environmental Regulation: A Lawyer’s Guide (2018).

[24] Adam M. Kron, David H. Pope, Gilbert B. Rogers, Water Issues in the Deep South, ABA Water Res. Comm. Newsl., (Dec. 2008).

[25] See Hannah Himmelmann and Donna M. Amaral-Phillips, Water Needs for the Dairy Herd, Univ. of Ky. Coll. of Agric., Food, and Env’t, Dep’t of Animal and Food Sciences, https://afs.ca.uky.edu/content/water-needs-dairy-herd, (last visited Jan. 27, 2020); The Ctr for Agric., Food and the Env’t, UMASS Extension, Vegetable Program, Irrigating Vegetable Crops, Univ. of Mass. Amherst, (Jan. 17, 2013)  https://ag.umass.edu/vegetable/fact-sheets/irrigating-vegetable-crops [hereinafter Irrigating Vegetable Crops]; VT. Pub. Radio, This Land: The Changing Story of Rural Vermont – Vermont Rural Life Survey, (Sept. 2019) http://projects.vpr.org/rural-life-survey-2019-vpr-vermont-pbs [hereinafter This Land].

[26] VT Agency of Agric., Food and Markets, Hemp Program, https://agriculture.vermont.gov/public-health-agricultural-resource-management-division/hemp-program, (last visited Jan. 27, 2020); Cheyenne Mountain Seed Co., Hemp Field Irrigation – How to Farm Hemp, https://cheyennemountainseedcompany.com/hemp-farming-resources/irrigation/ (last visited Jan. 27, 2020).

[27] See USGS New England Water Sci. Ctr., Vermont Water Use, https://www.usgs.gov/centers/new-england-water/science/vermont-water-use?qt-science_center_objects=0#qt-science_center_objects (last visited Jan. 15, 2020) (discussing domestic water use in New England).

[28] How We Use Water, U.S. Envtl. Prot. Agency, https://www.epa.gov/watersense/how-we-use-water#Understanding%20Water%20Use (last visited Feb. 9, 2020) [hereinafter How We Use Water].

[29] See Kron, Pope, & Rogers, supra note 24 (showing how water scarcity played out in another riparian jurisdiction); VT Dep’t of Health, Drought and Your Well, (Oct. 30, 2018) https://www.healthvermont.gov/environment/drinking-water/drought-and-your-well; see also VT Agency of Nat’l Res., ANR Drinking Water Drought Reporter, https://anrmaps.vermont.gov/websites/droughtreporter/ (last visited Jan. 15, 2020) (showing groundwater shortages are already being present in Vermont).

[30] Joseph W. Dellapenna, The Evolution of Riparianism in the United States, 95 Marq. L. Rev. 53,  85­–86 (2011).*

[31] Id.; see also Regulation of Stream Flow, 10 V.S.A. § 1001 (2019) (requiring that the State properly “protect, regulate, and where necessary control” the water resources “now and for the future”).

[32] Dellapenna, supra note 30, 85–85 (citing John Walsh et al., Ch. 2: Our Changing Climate. Climate Change Impacts in the United States: The Third National Climate Assessment (J. M. Melillo et al., eds. U.S. Global Change Research Program, 2014)).

[33] Id.

[34] Vermont State Statutes limiting this type of use include Act 250, 10 V.S.A. §§ 6081–6093, Regulation of Stream Flow 10 V.S.A. § 1001 et seq, and Water Withdrawals for Snowmaking, 10 V.S.A. §§ 1031­–1032.

[35] This Note focuses on the impacts of snowmaking on river health. Therefore, the focus of the biological environmental impact discussion will be on the downstream impacts, rather than the alpine impacts of snowmaking. However, snowmaking has also been shown to have a statistically significant impact on the quality of alpine vegetation and soils, and significantly alter landscapes with erosion during longer runoff periods. Furthermore, in many parts of the country, the energy used to make snow comes for burning coal, which further perpetuates the problem and the “need” for snowmaking. Christian Rixen et al, Does artificial snow production affect soil and vegetation of ski pistes? A Review, Perspectives in Plant Ecology, Evolution and Systematics 5, 219­–230 (2003); Travis A. Dahl, Impacts of Artificial Snowmaking on the Hydrology of a Small Stream, Advisory Committee on Water Information, https://acwi.gov/sos/pubs/3rdJFIC/Contents/3F-Dahl.pdf (last visited Nov, 26 2019); MacDonald, supra note 3.

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