Water Use Policy Background
Previous State Efforts in Water Use Policy
Robert G. Marvinney, State Geologist
Maine Geological Survey
Department of Conservation
This compilation provides an outline of water policy efforts carried out during the past several decades. While this summary addresses highlights in water policy with some detail, it is not comprehensive, and makes no attempt to address efforts before the 1980s. Several agencies contributed to this summary including the Departments of Environmental Protection, Human Services, and Agriculture.
Groundwater Protection Commission, 197x-1980
Broad review of groundwater quality and quantity issues. Groundwater Quantity Subcommittee report recommendations:
- Maine Geological Survey (MGS) and U.S. Geological Survey (USGS) continue to map gravel and bedrock aquifers.
Status: gravel aquifer mapping nearing completion, bedrock information collected but no direct mapping.
- Continue observation well network with USGS.
Status: currently 23 groundwater observation wells in Maine maintained through the cooperative stream gaging program.
- MGS and USGS prioritize future aquifer studies.
Status: while there has been no prioritization per se, aquifer characteristics are reported as part of MGS's aquifer mapping, and ad hoc studies have been conducted.
- Aggressive steps be taken to protect groundwater quality.
Status: substantial rules regarding water quality protection administered by MDEP.
- Maine agencies participate in USGS water use data program.
Status: serious effort to collect better water use information for Maine was begun in 2003 at the direction of the Legislature.
Water Transport Law, 1987
This law and the commission described below were initiated by the Legislature in response to concerns about wholesale export of water from "water-rich" Maine.
Legislative Finding: The Legislature finds that the transport of water for commercial purposes in large quantities away from its natural location constitutes a substantial threat to the health, safety and welfare of persons who live in the vicinity of the water and rely on it for daily needs. If the transportation occurs, persons who relied on the presence of water when establishing residences or commercial establishments may find themselves with inadequate water supplies. In addition, the Legislature finds that the only practicable way in which to prevent the depletion of the water resources is to prohibit the transport of water in large quantities away from the vicinity of its natural location. The purpose of this prohibition is, however, not to prevent the use of such supplies for drinking and other public purposes in the vicinity of the natural location of the water.
Provisions: Restricted transport across municipal borders of water in containers greater than 10 gallons for commercial purposes. Water utilities (and some other uses) are specifically exempted and other water transporters can appeal for a three-year exemption.
Water Supply Study Commission, 1987-89
This Commission included membership from the Legislature, State Planning Office, Departments of Conservation and Human Services, the PUC, two major water districts, and a water engineering consultant.
The commission was charged with studying:
- the adequacy of water supply for both commercial and noncommercial use;
- impacts on the state from exportation of water;
- adequacy of current regulation of the state's water supply;
- a review of the appeals process regarding restrictions on water transport.
- State government should begin the process of developing a water resource management strategy in order to ensure adequate future supplies of water for domestic, commercial and industrial needs of the citizens of the state.
Status: We've been discussing this ever since.
- The Legislature should establish a multi-interest board to recommend the structure for Maine's future water management activities.
Status: temporary Water Resource Management Board established to make recommendations. (see next section)
- The Water Resource Management Board should analyze current state water management activities and issues of concern and make recommendations to the Legislature by January 1, 1991 regarding the appropriate State role in managing water supplies and the institutional structure necessary for efficient and effective State involvement.
Status: Recommendations made in January 1991.
- In order to begin identifying the role of state agencies in water resource issues, the Water Resource Management Board should request that copies of all applications for licenses or permits having an impact on water resources filed with other agencies of State government be sent to the Board.
Status: Since the Board was not reauthorized, no action taken.
Water Resource Management Board, 1989-90
This temporary board was created in 1989 through legislation recommended by the Water Supply Study Commission. This Board had representation from state agencies involved in water issues (State Planning, PUC, Agriculture, Conservation, Fisheries, Economic and Community Development, Environmental Protection, Human Services) as well as water utilities, municipal governments, commercial users, hydropower producers, federal natural resources agencies, and the general public. The following summary of recommendations of this Board is organized according to the mandates in the Board's enabling legislation.
Water Use Rights: Review methods by which water rights are obtained under the existing law and recommend appropriate changes.
- The Legislature should adopt a general definition of "reasonable use" that includes all socially and economically beneficial uses of water.
Status: not adopted.
- The Legislature should extend the reasonable use rule to groundwater resources.
Status: not adopted.
- The Legislature should provide additional guidance to be used in resolving conflicts among competing users. Beneficial uses of both surface and groundwater should be judged reasonable based on their impacts on the sustainability of the water source, impacts on other legitimate uses, as well as other factors.
Status: not adopted.
Water Use Priorities: Recommend priority uses for preferential access to water supplies when supplies are inadequate to meet all demands.
Same recommendations as above.
Water Diversions: Recommend a policy regarding water diversion which addresses the implications of diversion from the State and the regions and sub-basins within the State.
- Replace the Water Transport law with a permitting process for all inter-basin diversions in excess of 500,000 gallons per day.
Status: not adopted.
- An applicant for transport of water between 500,000 and 1,000,000 gallons per day should be entitled to the permit as long as it:
Status: not adopted.
- Furnished public notice of the diversion;
- No evidence is produced to show that this diversion, in addition to current uses, could potentially exceed safe yield or otherwise be unreasonable.
Water Conservation: Recommend ways to improve and encourage conservation of water resources.
- State agencies continue to encourage cost effective conservation measures by individuals, commercial and industrial interests.
Status: state regulatory agencies routinely review conservation options with commercial and industrial water users. Some information on conservation practices available from some agencies.
New Permanent Structure: Recommend a permanent structure for centralized and coordinated conduct of the role of the State in water supply management.
- Create a new water resources management board comprised of a citizen's board and supporting staff.
Status: Board not created. Some responsibilities proposed for this Board are carried out by state agencies.
- Assist in the development of water management policies;
- Map water basin divisions to be used in planning;
- Determine and designate areas of limited local water supplies and establish priorities for undertaking water resource planning;
- Develop, review, adopt and amend as necessary local water basin management plans;
- Approve or deny water withdrawal permits for large diversions or any water withdrawal permits required as part of management plans;
- Provide a forum for the resolution of water-related disputes;
- Foster cooperation among federal, state, regional and local agencies;
- Collect, develop, evaluate, manage and disseminate water resource data;
- Provide assistance to other entities preparing study and action plans related to water resources.
Collection of Data: Implement a strategy for coordinated collection of water supply and use data and compile that data in a readily accessible form.
- Designate hydrologic management units within the state.
Status: partially completed. MGS and USGS developed detailed digital drainage divide maps that have been used and enhanced by other agencies.
- Standardize data collection among state agencies for collection and storage of water data.
Status: partially completed. GIS serves as a common platform for collection and sharing of water data among state agencies, but there has been little effort in standardizing formats.
- Water users of over 50,000 gallons per day should be required to report withdrawals.
Status: Not adopted. (see Water Use Reporting law below)
- Support the MGS/USGS water data collection project.
Status: Water Use position at MGS cut in 1991, USGS/state water cooperative budget reduced. (see Water Use Reporting law below)
- Develop a list of priority research needs and produce an annual report on water-related studies.
Status: state agencies have considered priority research needs and report on water-related studies although not in the annual report format envisioned here and not in a coordinated fashion.
Technical Assistance: Develop technical assistance programs for municipalities, communities, or individuals adversely affected by water use decisions.
- Board should coordinate water management activities among state agencies, provide technical support.
Status: Not adopted in this form. State agencies provide considerable technical assistance to communities and individuals with regard to water problems.
Agency Coordination: Develop a strategy for coordination of all state and local agencies involved in water supply management.
- Board should provide a single point of contact for water resource issues.
Status: Not adopted.
- Board should sponsor biennial exchange conference.
Status: Not adopted in this format, but the annual Maine Water Conference accomplishes much of this recommendation.
Dispute Resolution: Recommend a process for adjudication of disputes over the right to use water and over the establishment of water levels for water supply ponds.
- The state should modify responsibilities as necessary to achieve a complete and coordinated state agency approach to water-related dispute resolution.
Status: not adopted.
Aroostook Water Use Policy, 1996
The Aroostook Soil & Water Management Board was established by the Legislature in 1987 to coordinate an Army Corps of Engineers irrigation and conservation research demonstration project in the St. John River basin. This project studied the impacts of irrigation and conservation practices. Although the Legislature did not pass the water policy reforms recommended by the Water Resource Management Board, the Legislature did recognize the Aroostook Soil & Water Management Board as a legitimate organization to serve as a conflict-resolution agency for northern Aroostook County. Through a series of meetings, the Board made a number of recommendations:
- Inventory Aroostook County irrigators.
- Institute a process to address water withdrawal complaints.
Status: largely implemented.
- Work with farmers to assess irrigation needs.
Status: in place.
- Establish a direct withdrawal limit of 7Q10 and develop long-term Aquatic Base Flow (ABF) limits for withdrawals on streams where aquatic habitat is threatened.
Status: in place for Aroostook County.
- Encourage wetland use and impoundments on streams as alternatives to water withdrawal from streams.
Status: Agricultural irrigation pond exemption and general permit process for dammed streams in place.
- Financing for reservoir development.
Status: Some funds available through Legislative bonds.
- Educational program to encourage adoption of whole farm plans and to clarify the low flow plan to farmers.
Status: in place but limited funding.
Downeast Rivers Water Use Management Plan, 2000
This effort was initiated as part of the Maine's Atlantic Salmon Conservation Plan and focuses on the important salmon rivers of eastern Maine. The plan has many elements and recommendations that are being pursued as resources permit. Those recommendations include:
- Maintain USGS Gages on the Downeast Rivers, low-flow studies, monitoring strategies.
Status: mostly in place.
- Integrate Water Withdrawal Source Selection Hierarchy into State Policies.
Status: done on an ad hoc basis.
- Technical Assistance to Farmers -To ensure water resources are used as efficiently as possible, growers need technical assistance in implementing "best practices" for water management.
Status: Guidance document to be completed by September 2004.
- Cost Share Assistance- Cost share programs should be created to assist growers develop water sources that reduce current withdrawal impacts on Atlantic Salmon Habitat.
Status: New bonds passed for agricultural source development - See Agricultural Water Management Program below.
Agricultural Water Management Program
The Department of Agriculture established a new Agricultural Water Management Program in 1999 in response to the Governor's request to solve drought related losses by farmers in 1999. The Department convened a committee to develop a plan of action, the "Blueprint", which was completed in 2000. The Blueprint was updated in March 2003 as the Sustainable Water Source and Use Policy and Action Plan. The plan has a number of recommendations and actions to reduce drought related losses:
- Continued funding of the successful State cost share program for sustainable water source development including engineering design and offset of permitting costs.
Status: New Bonds passed in 2001.
- Change LURC regulations for water source development to mirror DEP regulations regarding well and pond development and seasonal agricultural use.
Status: Considerable debate during Sustainable Water Use Policy Process (see below), but without consensus.
- Study ways to reduce or eliminate the requirement for federal and state (LURC) mitigation of wetland impacts for agricultural pond development.
Status: draft recommendations developed.
- Add seasonal water use for agriculture as a high priority use in Maine law.
Status: Law passed establishing Agricultural as a priority water user in DEP water quality regulations.
- Support non-regulatory solutions to water withdrawal complaints during low flow periods while maintaining traditional, longstanding riparian rights of users. Utilize the successful Aroostook Water and Soil Management Board low flow policy as a model.
Status: No action to date.
- Fund more research studies on economics of supplemental irrigation and alternative methods to increase soil water holding capacity and create water use conservation and efficiency.
Status: Potato and Blueberry research accomplished.
- Fund low flow studies to establish realistic limits on withdrawal to water bodies in regions where irrigation is likely to continue with direct withdrawals.
Status: Low-flow study completed Downeast.
- Fund increased technical assistance from the Department, Cooperative Extension, Soil and Water Conservation Districts, and USDA-Natural Resources.
Status: Extra funding made available through NRCS in 2003 and 2004.
Sustainable Water Use Policy Process, 2000-2002
This process was initiated by several state agencies following a DEP draft proposal in 1999 for rules governing in-stream flows and water withdrawals. This effort was organized under the SPO's Land & Water Resources Council and involved state and federal agencies, water suppliers, irrigators, industrial water users, ski resorts, commercial bottlers, environmental organizations, and other interested parties. Considerable impetus for this process came from the perceived or potential conflict between Atlantic salmon habitat and water withdrawals in eastern Maine rivers. However, the process was established to consider water use policy statewide. The goal of the process was to develop a prioritized set of recommendations to establish sustainable water withdrawal policies for Maine's public water resources. The process involved several roundtable meetings with numerous participants, regular working group meetings, and subcommittee meetings.
Participants in the process agreed that solutions to water use challenges would contain many components:
- Improved storage options.
- Flow standards.
- Water conservation and efficiency of use.
- Eliminating regulatory discrepancies.
- Monitoring and research.
- Public education.
- Capacity to implement the strategy.
- Periodic assessment of effectiveness of strategies.
Subcommittees addressed storage needs, aquatic ecosystem requirements, water conservation, consumptive use, and research and monitoring. Though in the end final consensus was not reached on the recommendations, the water use reporting law which was subsequently adopted by the legislature was based largely on the work of the Sustainable Water Use Policy Process. That new law, which is further described below, also directs the DEP to undertake rulemaking to adopt water use standards.
Water Use Reporting Law 2002
Title 38, Article 4-B was adopted by the Maine Legislature in 2002. An outcome of the Sustainable Water Use Policy process, the new law established the Water Use Reporting Program. The DEP submitted the first report of the Water Use Reporting Program to the legislature in January, 2004. The major provisions of the law are:
- Non-consumptive use of water defined.
- Reporting thresholds defined (paraphrased here). Users of 20,000 gallons or more per day on small streams need to report annually. This threshold increases on larger flowing water bodies based on the flow. Users that withdraw from lakes must report based on a sliding scale of weekly withdrawal vs. lake size. Groundwater users with 500 feet of a surface water body must report according to the same requirements for that surface water body.
- Individual water reports are confidential.
- Reports go to various state agencies that aggregate them by watershed for inclusion in a master database.
- Non-consumptive and many other uses are exempt from reporting.
- Requires DEP to develop rules for "maintaining in-stream flows and GPA water levels that are protective of aquatic life and other uses and that establish criteria for designating watersheds most at risk from cumulative water use." These will be major substantive rules, submitted to the legislature for consideration in 2005.
- Requires the DEP to "encourage and cooperate with state, regional or municipal agencies, boards or organizations in the development and adoption of regional or local water use policies that protect the environment from excessive drawdown of water sources during low flow periods," as done in the Aroostook Low Flow Policy.
Last updated on February 13, 2006