MONTPELIER -- Two years after a Vermont Supreme Court ruling opened Berlin Pond to fishing, swimming and kayaking, the state is considering a petition to again keep people off the city of Montpelier's water source.

The group Citizens to Protect Berlin Pond has filed the petition to change the surface water rules, adding to a nearly five-year fight over access to the pond that has pitted recreation against environmental concerns.

Melissa Perley, who is president of the group and lives near the pond, notes that it's the sole source of drinking water for Montpelier as well as being a 100-year-old ecological system. The Montpelier city council has endorsed the group's petition.

"We're sacrificing clean water for recreation when there are 35 other bodies of water that allow recreation within a 30-mile radius and 11 within a 20-mile radius," Perley said. "There are lots of places to fully recreate. Our argument is not on our water source."

The Supreme Court ruled in May 2012 that the state -- and not Montpelier -- had the right to regulate recreational activities on the water. The state's Water Resources Panel has ruled that it is compatible with swimming, boating and fishing, the court said.

The ruling was a victory for Cedric and Leslie Sanborn, who had appealed to the Supreme Court after they were arrested for kayaking on the pond in September 2009.


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The state's attorney dropped the charges but Montpelier sought to have the defendants banned from boating, fishing and bathing in the pond. The Sanborns appealed a Superior Court injunction and won.

"It's a public body of water. And the Vermont Constitution and state statutes state that," Cedric Sanborn said at the time.

Montpelier owns much of the land around the pond and has posted no trespassing signs.

The water filtration plant does not filter or detect any petroleum products, Perley said, and augers and snow machines are technically allowed on the pond during winter. The state is also considering a petition from Montpelier to ban the use of internal combustion engines, including ice augers.

The state will look at those issues in its review, and is expected to issue a decision on both petitions in August, said Susan Warren, head of the lakes and ponds program for the Vermont Department of Environmental Conservation.

The group also raised concerns that someone could maliciously contaminate the water and that kayaks and canoes could track in invasive species such as zebra mussels.

The town of Berlin has been looking at options for access to the pond, for swimmers and kayakers, after residents overwhelmingly voted for it. Motor boats are not allowed.

Select board chairman Ture Nelson said there are concerns about disturbing wetlands on an 85 foot section of waterfront land that Berlin owns and the town is looking at whether an old right of way exists near the parking lot for runners and walkers.

"We're envisioning just a parking area and a path to the water maybe at the most a wooden dock if needed," he said.