A watershed decision is upon us and deserves our close attention if we are to preserve safe, clean drinking water for generations to come.

In Connecticut, preserving the supply of high-quality drinking water by protection of adjacent open space has been embodied in law since Public Act 77-606 amended §25-32(b) of the General Statutes and added sections (c) and (d) to specifically require a “written permit” rather than “prior approval” for the disposition or use change in use of Class I and Class II land. Section 25-37(c) defines land owned by a water company as Class I, II or III. Class I and II land serves as a recharge region for a public drinking-water reservoir or well field, either directly or indirectly. For example, Class II land might abut a tributary stream to a distribution reservoir. Class III land is outside a drinking-water watershed and is lightly regulated.

The Regional Water Authority was formed from the New Haven Water Company, which dates back to 1849 and owned some 25,000 acres of land, mostly Class I and II—that is, mostly open space and mostly in the watershed of its drinking-water sources. Under the enabling legislation, the Department of Public Health was given authority to strictly regulate the sale, lease or any change of use of Class I or II land. Only minimal restrictions apply to Class III land.

For several decades, Class I and II lands were essentially untouchable. Almost any new activity required change-of-use approval, and normally such approvals were given only where the activity was in support of providing supply. The advantage for water companies was, and is, that sources protected by vegetated open space are typically of high quality, needing relatively little treatment. Protection of source-water lands was deemed so important that, in 2000, when a British company, Kelda, acquired Bridgeport Hydraulic Co., the state invested some $90 million to reinforce protections; the fear being that a foreign-owned company might not be subject to the relevant state law. (Kelda is now Aquarion and has been acquired by Eversource.)

Over the years, traditional protections for Class I and II lands have been difficult to maintain. Water use is down, and undisturbed land is a tempting asset to monetize. Strict interpretation of the law has been questioned; some publicly beneficial projects, such as clean-energy projects have been approved with conditions; and a few, relatively small projects have been approved with legislative exemptions. But despite the ever-increasing desire of water companies to squeeze additional revenue out of their real estate, protection of Class I and II lands has remained strong, and Connecticut continues to maintain an almost uniquely high standard for its potable-water sources. (Only Rhode Island has a similar standard.)

It is for this reason that a proposal by New Britain to lease 100 acres of its Class I and II lands to Tilcon Co. for rock mining caused policy shock when first proposed 10 years ago and revived in 2016. The current proposal is for 74 acres. While regulators were struggling with whether to approve projects such as a one-acre solar array on Class II land, Tilcon and New Britain were asking to wipe out an entire watershed, with the idea that after 40 to 50 years the empty hole could be made into a new reservoir. The DPH told the applicants that they would have to seek a change in the law, and in 2008 and 2016, legislation was indeed passed that required a study of the mining project, which study was never done.

Opposition to the project has been intense. The land at risk happens to be beautiful, ecologically rich and viewable from the popular Metacomet Trail. But, with respect to the policy impact, it would not matter if the land was unappealing. The foundational statutory responsibility of DPH and the state is to maintain the purity and adequacy of the public water supply. One can argue that this or that limited project on Class I or II land is consistent with that responsibility. But if the state were to say that stripping, blasting and excavating an entire source-water watershed can be done without impairing the purity and adequacy of the existing supply, there is virtually no conceivable activity that could be forbidden on protected land without flagrant inconsistency in interpreting the standards. The state's high-quality drinking water would be at serious risk, and the process of treating the water for public consumption would become more challenging and costly.

The statutes are clear, the public policy is evident, the future need and our responsibility to generations not yet born is unquestionable. The rule of law should apply, no matter how great the short-term economic interests may be. The public trust in water should not be for sale.

Margaret Miner is the executive director of Rivers Alliance of Connecticut.