Fryeburg Planning Board revises rules for Wards Brook Aquifer

Public hearing on Wednesday unveils new version of ordinance

By Laura M. Russo
January 24, 2007

FRYEBURG—Talk of putting a Poland Spring bottling plant in Fryeburg is now just water under the bridge. Kingfield has given its conditional approval to a new $60 million bottling plant promising 135 jobs to this central Maine community.

Skeptics abound, but the Fryeburg Planning Board stands behind its revised version of new bulk-water extraction rules.

The Fryeburg Planning Board presented the additional wording at a Jan. 11 workshop on proposed changes to the water resource and wellhead protection section of Fryeburg's current land-use ordinance.

A public hearing on the document will be Wednesday, Jan. 24, at 7 p.m. at Fryeburg town offices.

“A lot of work has gone into making sure this document values, protects and manages Fryeburg’s water,” read a planning board memo that introduced an overview of the proposed ordinance. "For the last 18 months, it has been scrutinized by various parties, including state officials, lawyers, hydrogeologists and community members, and we want your feedback before the new ordinance is presented for a vote at the March 2007 town meeting.”

Some citizens, however, look to towns with ordinances which differentiate between water that is being used locally and water that is being “trucked out,” referring to bulk-water purchasers such as Poland Spring. Based on most recently available records, Pure Mountain Springs pumps about 80 million gallons a year into tanker trucks owned by Poland Spring. An equal amount of water serves local customers of Fryeburg Water Co., estimated a recent hydrologist's report.

Critics of bulk pumping point out that water for local agricultural use goes back into the ground — not out of the recharge area — and most audience members at the Jan. 11 hearing voiced opinions that a different approach be taken in the ordinance’s structure. Many agreed that a 50,000-gallon-per-day limit, deemed minuscule, may keep businesses from coming to Fryeburg, especially when business owners are responsible for financing the testing required to prove sustainability.

“This water ordinance has been designed for sustainability, and minimum impact on other resources,” maintained planning board chairman Gene Bergoffen. “It gives everyone a good tool to argue that the water is sustainable.”

In a section on sustainability relating to the Wards Brook Aquifer, permits are issued based on restrictions under a maximum total withdrawal amount of 603,000 gallons per day of water not required for municipal water use. New wording was added to cover not just municipal water use requirements, but water required to maintain minimum stream flow and accommodate potential drought conditions.

Also, “in the event an applicant is able to demonstrate that withdrawals of more than 603,000 gallons per day are sustainable, or in the case that new information made available to the planning board warrants a change in the 603,000 gallons per day level, the board may revise the amount of allowable water withdrawals after notice and a public hearing, but shall assure the public water supply, minimum stream flows and accommodation of potential drought conditions are maintained,” the draft ordinance states.

Within a section titled “permits for withdrawal outside Wards Brook Aquifer,” also dealing with permit requirements, ordinance wording previously read “for applications for withdrawal of 50,000 gallons or more per day of ground water from sand and gravel or bedrock aquifers other than Wards Brook Aquifer, the applicant will present a written report by a certified professional geologist or registered professional engineer experienced in hydrogeology which includes an analysis of (a list of criteria).”

Added wording clarifies, for withdrawals of 50,000 gallons or more per day of ground water from sand and gravel or bedrock other than the Wards Brook Aquifer “for agricultural purposes, the applicant may opt for approval under this ordinance, or, after notice to the code enforcement officer, may document compliance with the requirements of the Maine Department of Agriculture Management Program ... with respect to an approved water management plan that assures the proposed well will have no effect on the safe yield of the new water source.”

Those who attended the workshop expressed concern that the property rights of residents, who own land over the aquifer, may be restricted.

Dick Krasker, trustee of the Fryeburg Water District, explained that the district was formed with the goal of eventually acquiring the water company, therefore giving the town control over all sale of water.

A wrinkle is the water company's arrangement of selling bulk water to Poland Spring.

The Maine Supreme Judicial Court ruled on March 30, 2006, that the town could not use the local land-use ordinance to restrain or halt Fryeburg Water Company's sales of millions of gallons of ground water to Pure Mountain Springs — which, in turn, sells the water to Nestle Waters of North America brand, Poland Spring.

The Maine Supreme Judicial Court, siding with Fryeburg Water Co., upheld an exemption of the water company from a local planning board permit. The permit regulates bulk-water extraction of more than 10,000 gallons per day.

“Right now, we can’t do anything about (these sales) being grandfathered,” said Krasker, “that’s why the water district was formed — so when they own the water company, they can regulate (both large commercial and smaller local extractions.)”

An appraisal of the Fryeburg Water Co. is currently being conducted.

Also added to the ordinance was a definition of “municipal water supply,” which reads, “as used in this ordinance, this term, 'public water supply refers to water that is provided to town residents for domestic use, and does not include water from wells owned by the provider of this supply that is sold to third parties for other purposes.” Community members suggested many more definitions be included to better explain exact meanings, and re-wording be considered in many instances, to clear any possible legal challenge or review.

The planning board is recommending that a “land use table” amendment, dealing with commercial water withdrawal both within the Wards Brook Aquifer and outside, be “deleted from the proposed warrant until more comprehensive review of Fryeburg zoning, concurrent with development of a revised comprehensive plan, is completed.” This amendment would delegate “required planning board authorization and best management practices.”