LD 1643/ Public Law chapter 452
Work Group - Review of Ground Water Regulations 2005-2006
March 10, 2006
In-stream flow rules
- Dave Courtemanch (DEP) reviewed the water flow / water level rulemaking process currently underway at the DEP. Dave provided a written outline of the effort and a brief history of the process to date.
- The purpose of the rules is to maintain surface water conditions that directly protect designated uses.
- These rules focus largely on in-stream flow requirements during six "seasons" of the year to maintain near-natural flows. The rules also have requirements for lakes levels, differentiated by type of outlet. The rules may affect ground water withdrawals that have an impact on surface water.
- The rules allow standard alteration. They specify minimum seasonal flows that protect in-stream uses, above which activities can take place. Those users applying standard alteration will continue to do so.
- Site-specific flows can be established through more specific investigations - a water flow/level plan.
- The rules do not prohibit all withdrawal from any waterbody, they do not allocate water, and they do not confer any legal water rights.
- Rules set up a planning process. DEP will not be issuing permits but will be adopting plans.
- The rules include variances for water supplies during droughts.
- In LURC jurisdiction, a plan would be filed with the DEP but incorporated in LURC permit.
- All existing permits, water level orders, etc that specify flows or water levels remain in effect for the term of the permit.
- Discussion of water classifications: In response to concerns that water classifications favor urban areas for greater use of water (generally lower water quality) as opposed to rural agricultural areas (often with higher water quality), Dave noted that the State needs an array of classification for water. We are not striving to have all waters achieve AA. Activities in urban/suburbs areas could not continue if all water at AA. Furthermore, most waters are A/B/C, not AA, with only a few select waters in the AA classification. The group noted that classification is a contentious political process in the Legislature. Need to note that classifications may change.
- Discussion of allocation: Allocation is a very difficult issue. The rules do not allocate water, but the user community argues that they in fact do allocate water with regard to habitat. Some participants feel that the flow rules are not protective of any use other than habitat. Other designated uses are not addressed. Habitat is, in fact, allocated considerable resources.
- Post-meeting clarification by DEP: The rules must be protective of all uses. Neither the Clean Water Act, nor state water quality law, allows a hierarchy of uses. All uses are allowed to the extent that they do not impair another use. Aquatic life habitat is often the "limiting use" with any of the standards of quality or quantity. Aquatic life by its nature requires some constant quality and quantity to be maintained. Note too however, there are drought circumstances identified in the rule when public water supply takes a precedence. DEP has also issued permits (hydro) where recreation-based flows become the limiting criteria.
- Discussion of ground water impacts: Several participants have concerns about groundwater withdrawals and enforcement against those that have impact. We note that establishing impact is difficult. Currently wells within 500 feet of surface water bodies and above the reporting threshold must report use annually. It is generally thought that most wells with impact would be within this zone and above threshold. There is a need to consider surface water impacts when siting new ground water withdrawal wells.
- Discussion of process: The October 2005 version of rules is posted on the DEP web pages. New version expected by April 1, 2006. Rules might go to Board of Environmental Protection in June or July. These are major substantive rules and anything passed by BEP will go back to Legislature next January. The DEP will dedicate resources to this effort, mostly for site-specific needs. Most standard alterations will require no action.
Options for ground water management/regulation:
Ground Water Council:
Marvinney presented the concept of a Ground Water Council. Several states have councils and they generally consist of participants from state agencies with water responsibilities. The Council would have regularly scheduled meetings and would be a forum for discussion and coordination among the state agencies. While the staff of the various water agencies in Maine meet regularly to discuss issues, the Council would provide visibility to this coordination.
- Many participants think this idea has merit, recognizing that there is a great need for coordination. Having a formal group and process would give the public greater confidence that coordination is occurring.
- Several participants think such a Council should have broader representation than simply state agency people. Some water users should be involved and perhaps there should be some public participation. The Council could be organized under the Land & Water Resources Council, which already provides a mechanism for participation by interested parties. There could be an annual review.
- Such a Council would need clear priorities and an agenda. Most current coordination is on the regulatory process, which is important.
- Some participants indicated concerns about groundwater and development, particularly development that does not trigger the Site Law.
- Some participants suggest that such a Council is needed for all water issues, not just ground water.
- Summary: Marvinney offered to develop a fuller proposal for the Ground Water Coordinating Council concept and present it to the group at the April meeting.
Marvinney outlined a draft recommendation to establish a group to develop model ordinances or guidance materials for towns. The group would include state agencies, and stakeholders and would develop guidance that is complementary to the state regulatory process. This proposal grew out of lengthy discussions during the February meeting. Towns want some local control of their natural resources and are likely to develop ordinances with or without any guidance.
- Some feel that such a recommendation is premature in our process. We have not developed the big picture of what is needed for sustainable ground water use and protection, so it is difficult to see where this recommendation fits. Town ordinances typically are not easy to administer. There needs to be more information on what we would recommend.
- Others feel that such model ordinances/guidance is needed. Towns want state involvement and it is very low risk to begin the development of model ordinances as soon as possible.
- One participant noted that state involvement is not necessary because towns can engage the services of consultants to help develop ordinances.
- Some have found through direct experience that model ordinances can be cumbersome. There is a need to for a multi-town approach for aquifers that extend beyond town boundaries. Planners should be involved in ordinance development.
- Summary: The model ordinance recommendation has merit, but we need to better define a context before moving forward.
- As a side comment, one participant noted that desalinization of seawater is becoming more popular in coastal areas. We note that public water supplies need a permit for desalinization, while private water supplies need no permit. There is a question about who would need a discharge permit. This will be reviewed with DEP.
Watershed approach to ground water management/regulation:
Marvinney led a discussion of using watersheds as a basis for action on ground water issues. He outlined a document developed with MGS staff that broadly described "end-members" of a watershed approach in terms of participants, scope, and process.
- In this approach, watersheds "at risk" would receive more focus in terms of regulatory process and/or resources. A simple analysis could be done using average precipitation data, watershed size, and information on large water uses to do a coarse filter on watersheds. Those where water use exceeds some percentage of annual recharge might be identified as "at risk" and in need of more detailed attention.
- The watershed area can be used in the first-order estimate of ground water recharge. We would not distinguish between gravel and bedrock ground water sources until such time as a watershed was identified as "at risk."
- There could be a state-led oversight/management team or a locally led team.
- The authority could be advisory only, or could involve some level of permitting - or anything in between.
- Many supported a watershed approach as a basis for action and for directing scarce resources. Some other states (e.g. NH) have taken this approach, and Maine has used the watershed approach in addressing contamination. Scaling a response to a specific problem is a good approach. Islands and peninsulas are isolated and fall neatly within the watershed concept. Many of these are designated as sole-source aquifers. (Note that NH's process has been long, but without any indication that good science will guide policy.)
- It might be considered on a broader scale also, involving neighboring states.
- This approach needs to involve all levels, from the local to the state. There needs to be an entity and a process that towns can go to when water issues cross town lines (e.g. the Freeport example). Perhaps an existing entity such as the Soil and Water Conservation Districts would be an appropriate entity since many of the stakeholders are already involved with the SWCD.
- Might be a SWAT team approach - bring resources together in places where things are happening. Issue-oriented rather than a management approach.
- There are broader issues that need discussion: Multiple use allocation; ground water ownership and use; property rights of land surrounding water; interstate commerce clause; traditional use/sustainability.
- Some support a proactive approach, to try to anticipate what is coming, while others argue that we can only be reactive because we cannot know what is coming.
- Consider protecting ground water specifically under NRPA.
- Provide some good examples, real and/or theoretical, that show how the process might work and the scope and scale of the problem statewide.
- Summary: There is some positive energy around a watershed approach to ground water issues, although the group needs more detail to suggest a direction. MGS will develop a possible approach with more detail for the next meeting.
NEXT MEETING APRIL 14, 2006
D. Bell, Agricultural Council of Maine
G. Bergoffen, Fryeburg
C. Bohlen, Trout Unlimited
T. Brennan, Nestle Waters/Poland Spring
J. Delahanty, Pierce Atwood LLC
N. Dube, Atlantic Salmon Commission
J. Eberle, Maine House of Representatives
B. Ferdinand, Eaton Peabody
P. Gauvreau, Attorney General Office
S. Giffen, LURC
T. Glidden, State Planning Office
J. Harker, Maine Department of Agriculture
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
L. Percy, Maine House of Representatives
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. Wilfong, Fryeburg
Last updated on September 5, 2006