Friday, October 30, 2009

Wells Voters to decide
on Water Extraction Regulation

By Jim Kanak
Staff Columnist
Voters in Wells will decide on Nov. 3 whether the town will have an ordinance that allows and regulates large scale water extraction in the town. Question 1 includes a proposed regulation that is the product of a year-long process carried out by the town’s Ordinance Review Committee.
The proposed ordinance adds large scale water extraction as a permitted use in the town’s land use code in certain districts in town. It defines large scale water extraction as “extraction of water from ground water sources, aquifers, springs, wells, and similar sources in a total amount on any given day of 20,000 gallons or more.” Such extraction would require a permit. However, the proposed ordinance exempts extraction of water to be used within the town of Wells for “agricultural purposes, drinking water and domestic water supply to private residences and commercial users (that do not sell water for ultimate consumption outside the Town of Wells); water supply for public facilities such as schools within the Town of Wells; fire suppression; or for residential, commercial, and industrial purposes with the Town of Wells.”
The ordinance establishes an application process involving the Planning Board that requires the applicant to, among other things, detail the total maximum daily quantity of water to be extracted; the purpose of the extraction; identify the rates of drawdown and recharge of the aquifer or other ground water sources used, and other potential environmental impacts on the surrounding area; a traffic analysis by a professional engineer in Maine of the expected daily average vehicular trips, peak hour volumes, access at the site and other activities related to moving the water to the place it is ultimately processed; and site plans detailing the area of the extraction, including, but not limited to, the location of extraction points, roads, pipelines, and test and monitoring wells.
The Planning Board would have the ability to approve, deny or approve with conditions any application. Any approval would specify that it be only for extraction up to the maximum daily amount in the application. The approval would be for a period of three years, with renewal possible upon another review. That approval also would be good for three years before another review. An approval would be granted only if the applicant demonstrated that its activity would not cause “unreasonable changes in ground water flow patterns relating to the aquifer, any surface waters within the Town, any ground subsidence beyond the property lines of the applicant’s property, adversely affect the long term sustainability of the aquifer, or create a health risk.” The applicant also would be required to demonstrate an ongoing follow up monitoring system of the operation.
The ordinance includes a clause in which the applicant would agree that it would abide by the codes and ordinances of the town and “at no time rely on any national or international trade agreements, treaties or other instruments of legal means to abridge the rights of the citizens” of Wells.
Finally, the ordinance gives the Board of Selectmen the right to revoke or suspend the extraction permit under certain circumstances.
The debate about the question emanated largely from negotiations in the summer of 2008 between Poland Spring (and its parent corporation Nestle) and the Kennebunk, Kennebunkport and Wells Water District to allow the extraction of water for bottling purposes. While no agreement was reached, opponents to large scale water extraction in Wells urged that the town enact a ban on such activity. The town implemented a temporary ban, which has been twice extended, while it determined how best to approach the issue. The proposed ordinance was the approach the town chose to take.
Opponents (those who encourage a “no” vote on Question 1) argue that enacting an ordinance would open the way for a company like Nestle to begin extraction, and that the town would soon lose control of the situation. Ed Pare, a Wells resident who is a member of the group Protect Wells Water, said that the town code should be left unchanged.
“In the code there’s a section for each district with a list of permitted uses,” Pare said. “If (the use) is not listed, it is not permitted in the district. Now, large scale ground water extraction is not a permitted use. For large scale extraction, you must apply to the DEP and also have a permit from the town. Since it is not listed as a permitted use the Planning Board would have to deny a permit.”
Pare said he asked Andrew Fisk, a Bureau Director at DEP what would happen if DEP issued a permit and the town did not. Fisk responded in an email that the two permits “are not related as they are different laws. That does not mean that our permit trumps the town’s denial - so in your example the project could not proceed as it didn’t have all necessary permits. We condition permits to that end.”
Supporters of the ordinance (those who encourage a “yes” vote) argue that a tight regulation offers the town the best protection for its water resources. “The ordinance very clearly allows the town to control the amount of water to be extracted,” said Selectman Jim Spiller. “Great care was taken by the ORC to allow owners to use what is justifiably their’s without taking from anybody else. They’ve largely achieved that goal.”
Spiller disagreed that not having the use listed as permitted in the current regulation would prevent it from happening. He said the enactment of the temporary bans on extraction might have taken that protection away. “Not passing this will not prohibit water extraction,” he said. “Water extraction is a permitted use in the state of Maine. If we turn down the ordinance, it would be easy for an applicant to come in and say they have the right to extract. If or when that occurs, the town would have no regulation whatsoever. DEP regulations are nowhere near as tight as this. To protect itself, the town has to pass this.”