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Houston state permits for water project expire, new rules now apply

When Virginia Houston tapped into an aquifer on land she owns off Reed Road in Waitsfield in the early 1990s, she applied for and received state water source permits and construction permits to sell that water commercially.

While Houston and the town of Waitsfield wrangled over how the town zoning should be amended to allow commercial water extraction (ultimately allowed as a conditional use after three townwide votes) and after she received a town permit to truck the water from the site via six round-trip truck trips per day, Houston continued to resubmit and apply to the state for those two permits.

But this spring her consultants failed to reapply before the existing permits expired which triggered a March letter from the state informing her that her permits had expired and she would need to start the process over and be reviewed under the newer (2008)  and more stringent groundwater withdrawal reporting and permitting rules.

Further, the March letter from hydrogeologist Scott Stewart of the Vermont Department of Environmental Conservation drinking water and groundwater protection division notes that “due to the expiration of your source permit, the status of your project as an existing public community water supply source has changed. It is now considered as unpermitted and has lost its ‘first in time’ status with regard to existing or proposed projects until a new source permit has been issued.”

According to Stewart, the failure to apply for an extension in time meant that Houston’s project was “overtaken by the new rules.”

The new rules, he explained, require a more stringent level of review than what took place in the 1990s when she first received her permits.

“Now she will have to apply for a groundwater withdrawal permit. It is similar to the process she followed to get her source permit originally, but now it includes more components. Rather than just looking at the impact of water withdrawal on neighboring wells and springs, the project has to be reviewed for its impact on surface water, wetlands and other surface features. The new review takes a more comprehensive look at the impact of a project on the whole surrounding area,” Stewart explained.

For Houston to reapply, she will have to undergo a more thorough level of review with more components than the town of Waitsfield did when it applied for public water source permits for its municipal water project. Waitsfield’s well is drilled in the right of way of Reed Road and Houston has been battling the town legally over that well and the municipal water project since 2006.

According to Stewart, water source permits for commercial water bottling and bulk hauling operations, such as Houston had proposed when she first drilled her wells, are dealt with separately from municipal projects.

The fact that her project lost its “first in time” status means that the impact on her wells from any future project  – or from any increase in the amount of water the town draws from its municipal well – does not come first, as it had in the past. Now Waitsfield’s well has “first in time” status and any renewal of Houston’s permits would mean her project could not draw down the town’s wells.

Houston and the town are involved in other litigation over the wells, Reed Road and the water project. Houston appealed the town’s Act 250 permit for the water project to the Vermont Environmental Court and lost. She has appealed that decision to the Vermont Supreme Court.

Houston has also appealed two local permits for the municipal water project to the Vermont Environmental Court, one for the well house and one for a final subdivision plan for the project.

She has also sued the town and adjoining landowner Jean Damon seeking to establish a “prescriptive easement,” or an easement established by adverse possession, over Reed Road.

Meanwhile, work to complete Waitsfield’s water project continues with the extension of the main water mains from Route 100 to the smaller roads/neighborhoods that the system will serve.

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