The state has proposed new rules about how much water farmers and water districts can draw down from lakes, rivers and streams – rules opponents say could mean higher taxes to maintain public water systems and force farmers to give up their rights to irrigate the land.
The state Department of Environmental Protection has been talking about the rules for the last decade, motivated by a severe drought in the mid-90s when some streams used for irrigation dried up.
“There were literally dead fish baking in the sun,” said David Courtemanch, the department’s director of environmental assessment.
Courtemanch says the new rules, which have been designed in meetings of interested parties over the last three years, “allow for use. We’re not trying to put any waters out of bounds.”
But that’s not how water districts and farmers see it.
“It’s very undefined and very unpredictable and there’s not certainty of outcome,” said Jeff McNelly, executive director of the Maine Water Utilities Association, which represents water districts across the state.
“It creates a great deal of uncertainty in our mind. We have to supply water every minute of every day. If we have a bad rule, we can’t make a decision that we’re going to modify our business process.”
A public hearing on the new rules is scheduled for Thursday, Aug. 3, starting at 10 a.m., at the Holiday Inn on Community Drive in Augusta. Ultimately the rules will have to be approved by the next Legislature.
“Assuming they’re passed, our understanding of the rule is they preclude irrigation out of rivers and streams during summer periods when irrigation is needed,” said David Bell, head of the Maine Blueberry Commission.
“When you get right down to brass tacks, this doesn’t protect the agricultural use. If you can’t irrigate when it’s dry, obviously their use isn’t protected,” he said.
Proposed rules
The DEP says the rules are about water quality because they define how much water has to be in a lake or flowing through a river or steam to protect aquatic life.
“When everybody has their uses, what needs to be left behind to protect ecological functions?” is the question the rules are trying to address, Courtemanch said.
The problem is not that Maine is a dry state. In fact, it has plenty of water, but not always “at the right time of year or in the right place,” he said.
While anyone who draws down surface water could be affected by the rules, the largest users are water districts. Farmers are a distant second. Businesses like ski resorts that use water to make snow and golf courses that need a lot of watering generally already are regulated under their operation permits. Hydro-electric plants are regulated under other rules.
The DEP is proposing three ways to set water levels including: an across-the-board “standard allowable alteration” where the naturally occurring lake level or stream flow can only vary by a set percentage; a site specific flow standard that sets allowable water levels for specific bodies of water; and, existing permits, like those already in place for ski resorts.
Courtemanch said the department hopes the standard alteration, which allows for the least amount of water to be taken, works for many users. Farmers, however, are expected to ask for site-specific standards, because “they want the most they can get” for irrigation.
It is also expected the new rules will force some farmers to build holding ponds for times of drought or dry weather.
“We’re trying to get everybody to build water use into their planning,” Courtemanch said. “Streams are notoriously not sufficient. In a drought the water’s probably not going to be there in the quantity they need.”
Water districts concerned
While Courtemanch said the DEP has worked with the Department of Agriculture to come up with acceptable regulations for farmers – a definition not all farmers accept – water districts have proven to be more difficult.
“There’s a lot of controversy, if not fear” about restricting water use, he said. “It’s a much more difficult problem,” because the districts are in charge of the public water supply. “It’s something all of us need.”
There are 53 water systems in the state that use surface water supplies versus wells. Some of the largest, like the Portland Water District, drawing water from Sebago Lake, and Biddeford-Saco Water Company, which draws from the Saco River, won’t be affected because they are deemed to have an abundant supply. Others already are operating under use permits or are expected to meet the new standards.
It’s the small to medium ones, particularly along the coast, where fresh water supplies are more scarce and population has grown, that initially will be affected, Courtemanch said.
They likely include water districts serving Boothbay, Camden-Rockport, part of Mount Desert, Vinalhaven and Kennebunk, Courtemanch said. There does not appear to be a problem with supplies in Ellsworth, Bath or Damariscotta, although research is still ongoing. Some smaller districts are still being evaluated.
Courtemanch estimated that 20 districts out of the 53 statewide will be affected.
Those districts will have to apply for a Community Water System Withdrawal Certificate that will allow the system to continue to operate, but “may include conditions that require efficient use of water and operation that minimizes effect on water quality,” according to the DEP.
“The certificate will require the facility to implement reasonable, cost-effective steps to manage its system to reduce water quality impact, however, it will not require a water system to reduce service,” the proposal says.
All water districts could eventually be affected by the new rules if they develop new water supplies or when their current permits expire.
“We’re not restricting usage right now,” Courtemanch said, but if water districts expand, they would have to live by the new standards.
“It’s a slow moving process,” Courtemanch said, affecting water supplies over the next 20 to 30 years.
Cost of regulation
Despite the DEP’s assurances that the new rules would be phased in slowly, water districts are concerned.
“They do make it sound that way in conversation. They do not make it sound that way convincingly in the rule,” said Kirsten Hebert, director of operations for the Maine Rural Water Association, representing the state’s smaller water districts.
She worries about how the rule will be interpreted by future administrations in Augusta and her concerns boil down to money.
“We want to ensure water utilities have the ability to provide water without enormous costs,” she said.
“The rule requires utilities to undertake an environmental impact study. How much would that cost?” she asked. And, if water districts currently using above-ground water sources are forced to look for ground water, “that would be huge dollars to just abandon your water supply and look for a well.”
“The cost is to the ratepayers or the taxpayers. It’s not a cost that gets absorbed,” Hebert said.
Farmers too have concerns about the cost of the new rules, largely to put in holding ponds, that can run anywhere from $5,000 to $100,000 or more. And then there’s the regulatory hoops they have to jump through to put man-made ponds in what often turns out to be wetlands.
The state last year included $1 million in the November bond package to help farmers with the cost of building holding ponds, but that money was quickly used up.
“It’s a huge cost to build these ponds or put in wells,” said Bell of the Blueberry Commission. “It didn’t take much to empty that fund.”
He said blueberry farmers already have invested millions of dollars of their own money in alternative water supplies, and the new water rules could force them out of business.
“If barriers are put up such that farmers can’t do what they need to do to remain economically viable, they may be forced to sell,” Bell said.
Bell said the regulations are being pushed by the “Saab and Volvo crowd, whose lifestyles are more consumptive…than farmers trying to make a living off the land.”
He wants to have a better understanding of the scientific reasons behind the rules.
“The DEP hasn’t showed us what the biological basis for these standards are to protect aquatic life. There needs to be a balance between so called aquatic use and human use,” he said.
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