LD 1643/ Public Law chapter 452
Work Group - Review of Ground Water Regulations 2005-2006
January 13, 2006
At this meeting, staff from the various agencies that have roles in permitting ground water withdrawals outlined the regulations and processes involved in permitting such withdrawals. The Attorney General's Office also provided an overview of Maine's legal setting with regard to ground water ownership. The overviews were followed by a general discussion of issues among all group members.
I. Presentations by agency staff
- Andy Tolman provided an overview of ground water regulations at the Maine Drinking Water Program. (See presentation for full remarks.)
- Quantity of water is not specifically regulated.
- Al Hodsdon noted that quantity is actually regulated indirectly by the imposition of minimum travel times between water bodies and a ground water source well. Pumping too much reduces the travel time below the level required by the DWP.
- DWP Rules do not specifically require monitoring, but the DWP include a monitoring requirement in permits as a matter of course.
- Marcia Spencer-Famous provided an overview of the Land Use Regulation Commission's process for addressing ground water withdrawals. (See presentation for full remarks.)
- Land use districts define where activities can occur. LURC resources are thin, but adequate for careful review.
- Modeling is useful but not always necessary as in the Dallas Plantation proposal.
- State agencies do not conduct independent testing, but define the requirements for ground water testing and rigorously review materials submitted by the applicant.
- Resource testing could be done without a permit. Dave Bell indicated that some large growers spend several hundred thousand dollars to get a permit, basically because they build their well first. Rick Knowlton noted the same for public water supplies.
- Steve Timpano discussed how the Maine Department of Inland Fisheries and Wildlife reviews proposals for ground water withdrawals with regard to potential impacts on habitat.
- Concerned with essential habitats (e.g. bald eagle nest sites).
- Impacts on designated habitats (a species must be present to designate a habitat).
- Incidental "take" of adverse impact on habitat is allowed or is prohibited?.
- Al Hodsdon noted that public water suppliers are often the best stewards of lands due to their interest in limiting activities that can compromise water quality.
- John Hopeck provided an overview of the Maine Department of Environmental Protection's regulations that govern ground water withdrawals. (See presentation for full remarks.)
- Under NRPA, altering a wetland (e.g. filling in a portion) triggers compensation, but dewatering by induced recharge is more difficult to quantify than dewatering by trenching, for example. DEP stresses avoidance, where practical, as the preferred alternative to any alteration, but especially when the impacts are difficult to assess.
- MIFW also requested to review impacts on water resources.
- Gene Bergoffen provided an overview of Fryeburg's approach to regulating ground water withdrawals. (See presentation for full remarks.)
- Noted that a volunteer group raised $100,000, partially for a consultant to develop a hydrogeologic model, and partially to study the impact of withdrawals on Ward Brook and Lovewell Pond.
- Summary of modeling is that current wells could pump water in excess of recharge, but permittees are not pumping to this limit.
- Monitoring is an important element that will be provided by permittee but also some by private donations.
- Fryeburg felt that the State agencies should have asked applicant for more information on the bulk water renewal, but probably not within their scope of authority or resources.
- Dennis Harnish of the Attorney General's Office provided an overview of Maine's legal setting with regard to ground water.
- Mattox vs. Giles case. Involved a spring running dry on the Mattox property because of activities in Giles's gravel pit. There is a general presumption of percolating ground water in Maine law, but plaintiff needs to prove "underground stream" to have cause. Also needed a residence on property. Decision was no cause of action. (Editor's Note: there are no underground streams in Maine!!!)
- Maine uses the "absolute dominion" rule (English rule), which provides that a landowner owns the ground water under his land and can use as much as he wants. There is no cause of action by a neighbor whose property is damaged by these withdrawals.
- Many western states use "reasonable use" (American rule), which allows just that with no wasting of water, including taking it off site. Impetus was large-scale pumping by water districts which was dewatering farm land.
- California - "correlative rights." This is basically an allocation similar to surface water.
- Some states use "restatement of torts," which is based on case law.
- In 1990, the Maine Legislature had option to go to "reasonable use" but rejected this.
- One statute that attempts to address the worst part of the problem - 38 MRSA Section 404. An individual is liable when withdrawal is in excess of need for a single family home or when it interferes with such use on another property. Provide compensatory damages. Except for Mattox vs. Giles, this law has not been used.
II. Discussion of LD 1925 in this current session
(see Documents for LD 1925 -
An Act To Protect Maine's Groundwater Resources.
- Some participants feel that this group should take a position on this bill, which would change the law to "reasonable use." Others argued that much of this group's time could be devoted to this single issue, the result being that not much else would be accomplished. There is inadequate time to have a meaningful review of this issue before the bill is heard.
- Deb Friedman from Senate President Edmond's office noted that the bill was printed before adequate review and is not Edmond's proposal. She noted that action might be premature and that it would be good for someone from this group to come before the legislative committee and suggest that the committee hold off on this issue until after our work group completes it's report (November 2006).
- The work group felt that Marvinney should make this recommendation to the legislative committee during the public hearing for LD 1925.
III. General discussion of issues
- Harker: Identify problem areas and focus solutions there, similar to the Fryeburg process. Must be concerned with who pays.
- Hodsdon: not much needs to be changed for public water supplies, which represent 8 billion gallons of annual use. System works well, is understood.
- Bell: concern about late comers to ground water withdrawal in an area.
- Loiselle: Need to be mindful that ground water does not recognize municipal boundaries. Fryeburg's aquifer is in Fryeburg, but other municipalities use aquifers outside their boundaries.
- Knowlton: review and confirm state role in protection, controls, but recognize local ability to trump state regulations. Every town is unique and we should not make the Fryeburg example apply statewide. E.g. Freeport where aquifer extends beyond municipality - this is where the state has a role - verifying the science. State regulations are mostly reactive - general lack of guidance on state level for planning.
- Spencer-Famous: the Fryeburg approach is basically what LURC needs to do.
- Taylor: Do we have problems? Are they procedural? Do we need new regulations/legislation?
- Ahrens: not much controversy in science. Issues will always arise in individual municipalities. The municipal ordinance is not necessarily a good example of what should be done at the state level.
- Bergoffen: Ranking of uses? Guidance from the state level would be useful. Should all municipalities do things differently?
- McKee: each municipality is unique. Kingfield is working well. There should be guidance and appropriate process from the state level, but the local level should have a role.
- Hobbs: is there a regional gap?
- Hodsdon: certain things need state regulation, e.g. impacts on surface water. Need to recommend guidance to local level. Decisions need to be made at local level.
- Ahrens: Focus on the science. Group should focus on water impacts. Social/political impact is a completely different issue.
- Ferdinand: State should help towns understand sustainability. Issue - how do we address competing uses of the water budget?
IV. Developing the agenda for the next meeting (Feb. 10)
- All participants should direct to Marvinney their thoughts on problems that need focus. These suggestions will be developed into an agenda.
- Marvinney should check with MMA and MWRA to gauge their interest in participating in this process.
C. Ahrens, N. Beardsley, D. Bell, S. Belle, G. Bergoffen, C. Bohlen, J. Delahanty, M. Dubois, J. Eberle, W. Ferdinand, D. Friedman, T. Glidden, J. Harker, D. Harnish, T. Hobbs, A. Hodsdon, J. Hopeck, W. Johnston, R. Knowlton, D. Locke, M. Loiselle, R. Marvinney, J. McKee, J. McNelly, N. Schalit, K. Taylor, S. Timpano, A. Tolman
Last updated on March 17, 2006