LD 1643/ Public Law chapter 452
Work Group - Review of Ground Water Regulations 2005-2006
February 10, 2006

Meeting minutes

Goal for this meeting:

Review issues raised by members of the group, develop consensus on those we should address, and provide direction on how they should be addressed.

Relationships between levels of government (LURC/DEP/Towns) and between state agencies

Ensure a consistent review process across agencies. Much of this is being addressed by state agencies through development of consistent hydrogeologic review processes.

Land Use Regulation Commission (LURC) and Department of Environmental Protection (DEP)

• State agencies should develop formal Memoranda of Agreement that clarify roles in review of ground water withdrawal applications. Each agency has a slightly different focus and process.
• There probably are not major conflicts in mission between LURC and DEP, but LURC has broader mission (i.e. comprehensive land use planning).
• From public water supply perspective, there are substantial differences in supply proposals and review between the unorganized territories regulated by LURC and the organized towns regulated by DEP.

Several comments regarding redundancy in review within and across levels of government:

• There are many reviews in different agencies with only minor differences. This is costly in terms of time, resources. An example is Bulk water Transport permit in LURC jurisdiction. This requires a LURC review and permit, and a Drinking Water Program review (multi-agency) and permit.
• In large projects, there is some benefit to multiple review.
• There will always be multiple levels, partially because towns do not wish to give up right to home rule.
• Applicants need single point of contact/lead agency at state. Make sure all agencies engage appropriate advisory agencies.
• Develop a table of agency responsibilities with goals and tasks as a tool to identify duplication, gaps.

Discussion of local ordinances:

• For public water supplies, different local ordinances are an issue. An example is Hartland, which has no local ordinance vs. Freeport, which has a tough local ordinance.
• Both communities would have appreciated more of a state role in water development proposals/review. Town boards typically do not have resources for adequate review and not every town may guard water supplies appropriately.
• Some town ordinances are specific about types of water use while others are concerned mostly with quantity.
• The concerns of the agricultural community are similar to those of the public water supplies with regard to the differences in application requirements/process in LURC and DEP jurisdictions, and with regard to local ordinances.
• Irrigators would find hook up to public water supply much easier. Need assurance of supply and regulatory stability for investment.
• With regard to the development of model ordinances (typically developed by the state for use by towns), the Maine Municipal Association (MMA) generally likes model ordinances. MMA might consider two questions with regard to this:
  • Does a town do something that the state doesn't do?
    • Yes, towns fill gaps.
    • No, overkill, redundancy, etc.
  • Does town do something that State does?
    • Yes, and it's good to have this redundancy.
    • Yes, and it is burdensome redundancy.
• Towns are unlikely to allow the elimination of town reviews and home rule. But we need to address reactionary response to water withdrawal proposals. Objectors bring up many issues other than actual withdrawals.
• There can be informal agreements between towns and state agencies for exchange of information, e.g. Kingfield and LURC.
• This group should recommend that an appropriate body develop a model ordinance or guidance documents for towns.

Discussion of watershed approach to regulation of water withdrawals

• A watershed focus might be a framework for regulation, rather than new statewide regulations. Some particular set of regulations may only be activated in a watershed when water use approaches some percentage of available water.
• This approach may be developed with several tiers.
• There are some concerns that State does not have information needed for watershed analysis. Other approaches might be:
  • First come - first served basis.
  • Allocation.
  • Based on resource use.
• Watershed good for planning, but then need details for permit.
• Source water protection program is a component of the watershed approach, but there needs to be a broader solution.
• Existing uses: Simple recognition of existing uses would be prudent. Need to ensure that existing uses have some standing in the permitting process. But also need to consider the impacts of grandfathering existing uses, which has presented problems elsewhere in New England.
• Conservation should be part of a strategy. Can such measures meet future demand?
• Stewardship should be an important element in whatever scheme is pursued. Incentives toward stewardship might be the least expensive route toward wise use and stewardship. Users might be charged with a stewardship obligation.
• Important to look at cumulative impacts and consider priority water uses in this context. Note that public water supplies represent 88% of withdrawals.
• A watershed approach needs to be dynamic, capable of responding to new demands.
• State needs a greater role in addressing development. Site law only addresses subdivisions of ≥30 lots.
• Monitoring is an important element of any approach.

Groundwater ownership/legal setting

• Courts have been hesitant to change Maine's legal basis from one of "absolute dominion" to "reasonable use" or some other framework, but it may be only a matter of time before this changes.
• We may wish to consider recommending a change in legal basis.

Discussion of surface water/ground water interactions and flow rules

• Brief discussion of these issues and proposed flow rules makes it clear that this group will benefit from a short presentation by Dave Courtemanch on the flow rules. Presentation proposed for March 10 meeting.

Other discussion points

• Develop more than one model. All politics is local. Some places might be better off with allocation model; others might be better served by stewardship.
• Charge is clear from statute establishing this group, but it should not limit discussion.
• Focus needs to be proactive - to be prepared for future demands.
• Consider regional ground water management groups as proposed by the former Water Resources Management Board (1989). The Aroostook Water and Soil Board has taken this role to some degree. Still largely complaint driven. The degree of regulation is wrapped up in the definition of adverse undue impact.
• Some expressed concerns that we don't know all the water uses. However, the Water Use Reporting program enacted in 2002 has generated some very good information on a basin scale of significant water uses. Compliance with the program has generally been good.
• Should we consider thresholds? Does the state have jurisdiction in all areas they need? We need to look at adequacy of regs vs. potential demand.
• Should we consider allocation? There is a range of ways to approach allocation. The political battle around this is most difficult. Get everyone's favorite approach on table.

Preparation for March 10 Meeting

• Invite Dave Courtemanch to discuss flow rule
• Develop a table of agency responsibilities and tasks
• Develop a recommendation to task a group to develop model ordinances/guidance documents addressing water withdrawals for towns.
• Outline components of agency MOAs.
• Outline components of a watershed approach to ground water withdrawal regulation.
• Add several documents to website (Report to Legislature on consistent hydrogeologic reviews; outline of past water policy efforts).

Meeting participants

C. Ahrens, Pierce Atwood LLC
J. Austin, Maine Municipal Association
N. Beardsley, Maine Drinking Water Program
D. Bell, Agricultural Council of Maine
S. Belle, Maine Aquaculture Association
C. Bohlen, Trout Unlimited
T. Brennan, Nestle Waters/Poland Spring
D. Dow, Maine Senate
J. Eberle, Maine House of Representatives
B. Ferdinand, Eaton Peabody
P. Gauvreau, Attorney General Office
T. Glidden, State Planning Officev T. Hobbs, Maine Potato Board
A. Hodsdon, A.E. Hodsdon Engineering
J. Hopeck, Maine Department of Environmental Protection
W. Johnston, Muskie Center
M. Loiselle, Maine Geological Survey
R. Knowlton, Aqua Maine Inc.
R. Marvinney, Maine Geological Survey
K. Mayland, Trout Unlimited
J. McKee, Kingfield
J. McNelly, Maine Water Utilities Association
M. Spencer-Famous, LURC
K. Taylor, St. Germain Assoc.
S. Timpano, Maine Department of Inland Fisheries and Wildlife
A. Tolman, Maine Drinking Water Program
J. Trial, Atlantic Salmon Commission

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Last updated on Sept 5, 2006