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Groundwater Extraction Bill

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Be it enacted by the People of the State of Maine as follows:

Sec. 1. 38 MRSA c. 3, sub-c. 1, art. 1-H is enacted to read:

ARTICLE 1-H

RIGHTS TO AND PERMISSIBLE USES OF GROUNDWATER

§410-Q. Definitions

As used in this article, unless the context otherwise indicates, the following terms have the following meanings.

1. Nontraditional use. "Nontraditional use" means any use of groundwater that is not a traditional use.

2. Person. "Person" means an individual, partnership, company, corporation, association, unincorporated association, joint venture, trust or municipality; the State or an agency, department or subdivision of the State; a federal agency; or any other legal commercial entity.

3. Traditional use. "Traditional use" means:

  • A. The extraction of groundwater from under a person's property for final consumption on that property, including human, agricultural and industrial consumption; and
  • B. The extraction of groundwater by any water district exclusively for the purpose of supplying the water to customers who will consume that water on the customers' own property.

§410-R. Freshwater Resource Board

1. Board; established. The Freshwater Resource Board, referred to in this section as "the board," is established. The board consists of 7 members appointed by the Governor as follows: one representative from among nominees submitted by any statewide farmers organization; one representative from among nominees submitted by any statewide organization of water districts; one representative from among nominees submitted by any statewide hunting or fishing organization; one representative from among nominees submitted by any statewide lake preservation organization; one representative who is a private well owner; one representative who is a nontraditional user; and the Attorney General, ex officio. The board shall appoint its own chair.

2. Protection of groundwater supply and quality. The board shall take all reasonable measures to ensure an adequate supply of usable groundwater for the people of the State and to ensure that the quality of the water is protected.

3. Monitoring levels of sustainability. The board shall monitor levels of sustainability of groundwater and protect against uses of groundwater that are detrimental to aquifers, bodies of surface water or wetlands or to the public health and safety and general welfare.

4. Powers. The board is authorized to hire staff, establish offices and take all other reasonable administrative steps to carry out its duties. To raise funds needed to carry out its duties, the board may levy a fee on every gallon of water extracted for nontraditional use when the board determines the levy is necessary.

5. Infrastructure investment. The board shall provide funds for infrastructure investment to municipalities in or bordering an aquifer zone when the board determines such funds are necessary.

§410-S. Priority of traditional use

A person who uses groundwater for a traditional use holds the first right to use that groundwater.

§410-T. Liability for interference

1. Cause of action. A person may maintain under this section an action for equitable relief or an action in tort to recover damages, or both, for the unreasonable harm caused by another person withdrawing, diverting or altering the character or quality of groundwater.

2. Factors. Factors to be considered in determining the unreasonableness of any harm referred to in subsection 1 must include, but need not be limited to, the following:

  • A. The purpose of the respective uses or activities affected;
  • B. The economic, social and environmental value of the respective uses, including protection of public health;
  • C. The nature and extent of the harm caused;
  • D. The practicality of avoiding the harm;
  • E. The practicality of adjusting the quantity or quality of water used or affected and the method of use by each party;
  • F. The maintenance or improvement of groundwater and surface water quality;
  • G. The protection of the existing value of land, investments, enterprises and productive uses;
  • H. The burden and fairness of requiring a person who causes harm to bear the loss; and
  • I. The burden and fairness of requiring a person to bear the loss who causes harm in the conduct of reasonable agricultural activities, using good agricultural practices conducted in conformity with federal, state and local laws and regulations.

§410-U. Protection from terrorism

A corporation that is owned in whole or in part by a corporation located outside the United States is allowed the same right to groundwater for nontraditional use as is a domestic corporation upon a demonstration that the corporation and its subsidiaries are not involved in terrorist activities anywhere in the world.

Sec. 2. Study of the public trust doctrine and allocation as applied to groundwater. The Freshwater Resource Board, established in the Maine Revised Statutes, Title 38, section 410-R, shall study whether the connection between surface water and groundwater warrants an extension of the public trust doctrine, which is applicable to surface water in the great ponds and tidal rivers, to other surface water and to groundwater. The board shall also study methods to allocate groundwater for nontraditional use when, to ensure sustainability of the groundwater supply, nontraditional use must be limited. The board shall submit its findings to the Governor and the Legislature no later than 18 months from the effective date of this Act.

SUMMARY

This initiated bill proposes the following provisions.

1. It defines "traditional use" of groundwater as the extraction of groundwater from under a person's property for final consumption on that property and the extraction of groundwater by any water district exclusively for the purpose of supplying the water to customers who will consume that water on the customers' own property. Groundwater use that does not come under this definition is defined as "nontraditional use."

2. It establishes the Freshwater Resource Board, and directs the board to:

  • A. Take all reasonable measures to ensure an adequate supply of usable groundwater for the people of the State;
  • B. Ensure that the quality of groundwater is protected;
  • C. Monitor the levels of sustainability of groundwater and protect against uses of groundwater that are detrimental to aquifers, bodies of surface water or wetlands or to the public health, safety and general welfare; and
  • D. Provide funds for infrastructure investment to municipalities over and bordering an aquifer zone when the board determines such funds to be necessary.

3. It authorizes the board to hire staff, establish offices and take all other reasonable administrative steps to carry out its duties.

4. It authorizes the board to levy a fee on every gallon of water extracted for nontraditional use in order to raise funds to carry out the board’s duties.

5. It provides that a person who uses groundwater for a traditional use holds the first right to use that groundwater.

6. It creates a cause of action and allows a person to initiate an action for equitable relief or an action in tort to recover damages, or both, for unreasonable harm caused by another person withdrawing, diverting or altering the character or quality of groundwater.

7. It specifies that a corporation that is owned in whole or in part by a corporation located outside the United States is allowed the same right to groundwater for nontraditional use as is a domestic corporation upon a demonstration that it and its subsidiaries are not involved in terrorist activities.

8. It directs the Freshwater Resource Board to study whether the public trust doctrine applicable to great ponds and tidal rivers should be applied to groundwater and to study methods to allocate the nontraditional use of water when the board finds that, to ensure sustainability of the water supply, nontraditional use must be limited.