Wins and Losses in the Legislature

As the Maine State Legislature winds down the first half of its 124th Session, we have good news and bad to report.  Let’s take the good part first.

Camp Roads
Last year, when DEP reported to the Legislature on the state of Maine lakes, the Natural Resources Committee charged the department with finding a way to lessen polluted runoff from private roads.  Don Witherill of the Land and Water Bureau at the department,  convened a six month stakeholder process to tackle the task, and COLA was well-represented and actively participated in this highly productive process.

Three pieces of legislation, each of which was successful, a practical and easy to use Camp Road Evaluation Worksheet, and a new version of the DEP’s Camp Road Manual emerged from the unusually fruitful stakeholder sessions.  Bill LaFlamme of DEP will demonstrate the use of the new Camp Road Worksheet and DEP’s Kristen Feindel and Betsy Bowen of COLA and the Maine Alliance for Road Associations (MARA) will discuss the new regulations and the new Camp Road Manual at Maine COLA’s MAINE LAKES CONFERENCE in Standish on June 20th.

Three successful bills came out of the stakeholder group and resulted in a number of camp road improvements.  Now, road commissioners and road association board members will have liability protection from legal actions which may be brought against them by owners of land parcels on a private way if those actions concern carrying out decisions made by the road association at duly held meetings. 

New law also permits towns to use road equipment for maintenance of private ways if the town decides it is in its interest to do so.  This one change represents a big step forward in defining how Maine’s Public Purpose Doctrine applies to road repairs that protect water quality.  The department asked for and received an opinion from the Maine Attorney General on whether or not it is in the public interest to maintain a private way if not doing so would harm lake water quality. The AG said yes.  This opinion justifies the use of public funds for maintenance of private ways.

A third bill eliminated anachronistic notification requirements for statutory road associations and made clear that they can continue and enjoy the rights assigned them without having to re-constitute themselves anew each year.

Commercial Composting, Another Win
For the second time in a row, a pernicious bill seeking to transfer the regulation of commercial agricultural composters from the Department of Environmental Protection to the Department of Agriculture was soundly defeated in committee.  The problem with this idea is that the Department of Agriculture isn’t charged with protecting Maine’s water resources, therefore, transferring oversight of large composting facilities to it would emasculate the surface and groundwater protections DEP oversees.  This defeat was a win for water.

Groundwater: The Debate Continues
Many bills, reflecting growing public concern about the long term effects of large scale commercial groundwater withdrawal, came before the Legislature this year.  Most were defeated or set aside.  Two, having to do with minor procedural and regulatory changes did pass.  A third which aimed to set up a Blue Ribbon Commission to assess the adequacy of Maine’s legal and regulatory framework for managing and protecting groundwater resources will pass in a watered-down version that can be expected to rubber-stamp Maine’s current separation of surface and groundwater management which makes doing business here so palatable to international water bottlers.

Groundwater issues range far beyond one town’s jurisdiction or a single aquifer’s extent.  They involve Maine’s antiquated legal water framework and the evolution of what is meant by the Doctrine of the Public Trust.   Maine’s interpretation seems innocent of Joseph L. Sax’s groundbreaking law journal treatise (1970) in which he said, “[p]ublic trust problems are found whenever government regulation comes into question, and they occur in a wide range of situations in which diffuse public interests need protection against tightly organized groups with clear and immediate goals.”  (emphasis added). Groundwater issues also touch on earth’s water budget; the realities of the hydrologic (water) cycle; fundamental democratic rights; the current scarcity of freshwater globally and across our own nation;  predicted population growth in this century; the true extent of Maine’s scientific knowledge regarding groundwater.

Maine law draws a distinction between ground and surface water, regulating the former under the principle of Absolute Dominion, and the latter by the Reasonable Use standard. Reasonable Use is a fairness doctrine acknowledging the commonality of everyone’s interests in water; Absolute Dominion confers ownership of groundwater on the  owner of land above the source.  Absolute Dominion was the standard in Roman times and when Medieval nobles claimed ownership of everything on, above and below their lands; then it entered English common law; and immigrated to the New World with early settlers. People at that time believed groundwater was inexhaustible, secret, uncontrollable, and, therefore, could not be regulated by man.

This led many states to develop different systems of law for handling ground and surface water issues. As the science of hydrology matured, scientists determined that there is no meaningful distinction between surface water and groundwater and that they are interdependent parts of a continuum we call the Water Cycle.  Most US jurisdictions have abandoned Absolute Dominion, but Maine is one of a small handful of states that still clings to Absolute Dominion.  This is undoubtedly why the bottled water industry lined up against groundwater bills in the legislature this year.

Global and regional interests in Maine’s plentiful groundwater supplies have stimulated enough concern to generate four major studies of water management policies since 1987.  Each of these panels presented comprehensive reports to the legislature recommending creation of a coordinated water management structure, but little substantive legislative action has ensued.  While it is true that the legislature has reacted to particular issues by enacting modifications to Absolute Dominion such as the Site Location of Development and the Water Transport Law, state policy remains fragmented. Twenty-two state agencies now share varying degrees of responsibility for water resources. 

Absent a coordinated state water management policy, overlaps, gaps, poor coordination and communication, and reactive policy decisions will be difficult to avoid.  This doesn’t put Maine in a strong position in face of the world’s growing demand for fresh water.  The Blue Ribbon Commission which was trimmed this session is just one more casualty in this private-versus-public-interest struggle that has gone on here for the past 25 years.

Water scarcity is a worldwide problem. Global freshwater consumption doubles every 20 years. Serious water shortages exist today in over 30 countries where more than half of earth’s population lives.  Our National Intelligence Council reports that water will become the world’s chief resource issue during this decade.  Nor is the our own country exempt from water shortages. In 2003, the US Geological Survey listed seven regions experiencing groundwater depletion: the Atlantic Coastal Plain, Florida, the Gulf Coast, Chicago-Milwaukee, the Northwest, the Southwest, and the High Plains; recently,  water shortages in the Southeast have made the news.

Should we worry? Maine receives over 40 inches of rainfall a year, and trillions of gallons of rainwater and snowmelt replenish our aquifers annually.  Proponents of the legal status quo argue that Maine’s recharge rates and existing legal framework will ensure adequate supplies for all time.  We disagree.  Since groundwater pumping takes place in one locale, local recharge may not be enough to protect that area’s wetlands, stream flows, lakes, and future human needs from worldwide demand and the persuasions of money. 

Like any other good, water’s value increases as availability diminishes.  One Canadian water entrepreneur, whose company has a contract to sell 4.8 billion gallons of glacier water a year for the next 30 years, was quoted in Ode magazine last year as saying “It is impossible to overestimate the importance of a pure water supply.”  This is another way of saying water is on its way to becoming priceless. 

In a democracy, power resides with the people.  They invest that power in elected officials in order to protect their interests in the common good  High value items, such as the element essential for life, generally get placed in the public trust.  We have done this with our surface water; it’s now time to do the same with groundwater.  Otherwise this vital resource may be ruled by the principle of who got there first or who has the most money. 
Others among us say water is Maine’s oil and our ticket to an economically sustainable future.  We see nothing wrong with this viewpoint.

Sources:

“Earth’s Water Budget:” University of Illinois, 2002

“Ground-water Depletion Across the Nation,” USGS Fact sheet, 2003

“Aquifer Depletion,” Lester Brown, World Watch Institute, 2007

“What if Water is Traded Like Oil,” Jay Walljasper, ODE Magazine, 2006

Thirst, Fighting the Corporate Theft of our Water, book and film by Alan Snitow and Deborah Kaufman

Blue Covenant: The Global Water Crisis and the Coming Battle for the Right to Water, Maude Barlow 

Mirage: Florida and the Vanishing Water of the Eastern U.S., by Cynthia Barrow

Water Follies, Robert Glennon, Island Press, 2002

Groundwater in Maine:  A Time for Action, Beth-Ann F. Gentile, September, 2006

Water Supply and Allocation Study, PUC, 1987

Maine Water Supply Study Commission, Report to the Legislature, 1988

Water Resources Management Board Report to the Legislature, 1991

Land and Water Resources Council Report to the Legislature, 2006

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