An Act To Create the Freshwater Resource Board
Maine Legislature, Session 123, LD 1743
Committee: Natural Resources
Sponsors: BARTLETT, KOFFMAN, STRIMLING, BABBIDGE, EBERLE, WAGNER

Legislative Document 
No. 1743 
S.P.610 
March 27,2007 
An Act To Create the Freshwater Resource Board 
Reference to the Committee on Natural Resources suggested and ordered printed. 
Presented by Senator BARTLETT of Cumberland. 
JOY J. O'BRIEN 
Secretary of the Senate 
Cosponsored by Representative KOFFMAN of Bar Harbor and Senator: STRIMLING of 
Cumberland, Representatives: BABBIDGE of Kennebunk, EBERLE of South Portland, 
WAGNER of Lewiston. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 22 MRSA c. 601, sub-c. 6, as amended, is repealed. 
Sec. 2. 38 MRS A c. 3, sub-c. 1, art. I-H is enacted to read: 
ARTICLE I-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 any individual, partnership, company, corporation, 
association, unincorporated association, joint venture, trust or municipality, the State or 
any agency, department or subdivision of the State, a federal agency or any other legal or 
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. Creation of board. The Governor shall establish the Freshwater Resource Board, 
referred to in this article as "the board," which must consist of seven members. The 
Governor shall appoint: 
A. One representative from among nominees submitted by any statewide agricultural 
organization; 
B. 
One representative from among nominees submitted by any statewide 
organization of water districts; 
C. One representative from among nominees submitted by any statewide hunting or 
fishing organization; 
D. 
One representative from among nominees submitted by any statewide 
environmental protection advocacy organization; 
E. One representative who is a private well owner; 
F. One representative who is a nontraditional user; and 
G. The Attorney General. 
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 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 to issue bulk water transport permits as provided in this chapter. 
4. Powers. The board is authorized to hire staff, establish offices and take all other 
reasonable administrative steps to carry out its duties under this article. 
5. Rulemaking. The department may adopt rules necessary for the implementation 
of this article. The rules may include imposition of a fee to cover the costs of providing 
permits, including any impact studies required by the department. Rules adopted pursuant 
to this subsection are malor substantive rules as defined in Title 5, chapter 375, 
subchapter 2-A. 
§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. Bulk water transport 
1. Prohibition. Except as otherwise provided in this section, a person may not 
transport water for commercial purposes by pipeline or other conduit, by tank truck or in 
a container greater in size than 10 gallons beyond the boundaries of the municipality or 
township in which the water is naturally located or any bordering municipality or 
township. 
2. Exceptions. The prohibition in this section does not apply to: 
A. Any water utility as defined in Title 35-A; 
B. Water transported for use in well drilling, construction activities, concrete mixing, 
filling swimming pools, servicing portable toilets, firefighting, hospital operations, 
aquaculture, agricultural applications or civil emergencies; 
C. Water distilled as a by-product of a manufacturing process; and 
D. Water transported by authority of a bulk water transport permit issued under 
subsection 3. 
3. Permitted transportation. The board, after consultation with the department, the 
Public Utilities Commission, and the State Geologist, may authorize transport of water 
for commercial purposes if the board finds as a result of independent assessment and 
investigation that: 
A. Transport of the water will not constitute a threat to public health, safety or 
welfare; 
B. Transport of the water will not interfere with traditional uses; 
C. The amount of water transported from any aquifer is in sustainable amounts and 
will not affect the affected aquifer in a manner that will affect the groundwater's 
contribution to surface water and the plant and animal life dependent on these water 
sources; 
D. For a source not otherwise permitted by the department or the Maine Land Use 
Regulation Commission, the water withdrawal will not have an undue adverse effect 
on waters of the State, as defined by section 361-A, subsection 7; water-related 
natural resources; or existing uses, including, but not limited to, public or private 
wells, within the anticipated zone of contribution to the withdrawal. In making 
findings under this paragraph, the board shall consider both the direct effects of the 
proposed water withdrawal and its effects in combination with existing water 
withdrawals; and 
Before issuing a permit the board shall require the applicant to provide any information or 
studies it considers necessary to ensure an independent assessment of projected 
sustainability. Any permit issued must include a provision for ongoing independent 
monitoring of water extracted during the term of the permit and the effect on traditional 
users, the aquifer and surface waters. 
Any authorization under this subsection is for a period not to exceed 3 years and is 
subject to termination if the board finds that the conditions on which the permit was 
issued have changed. Authorization may be renewed subject to the same criteria. 
4. 
Conditions of authorization. 
Notwithstanding Title 1, section 302, the 
exceptions authorized in subsection 2 and any authorization granted under subsection 3 
are subject to future legislative limitations of the right to transport water. 
5. 
Emergency. 
In case of an emergency, any person may transport water as 
necessary for the duration of the emergency, but the person transporting the water must 
inform the board within 3 days and the board may determine when the emergency is over. 
6. Penalty. A person who transports water in violation of this section is guilty of 
illegal transport of water. Illegal transport of water is a Class D crime. Each shipment, or 
day of transport if by pipeline, is a separate offense. 
§410-U. Reasonable use; 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's withdrawing, diverting or altering the character or quality of 
groundwater. 
2. Factors. Factors to be considered in detennining the unreasonableness of any 
hann referred to in subsection 1 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 hann caused; 
D. The practicality of avoiding the hann; 
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 hann to bear the loss; 
and 
I. The burden and fairness of requiring a person to bear the loss who causes hann in 
the conduct of reasonable agricultural activities, using good agricultural practices 
conducted in confonnity with federal, state and local laws and regulations. 
§41 0-V. Protection from terrorism 
A corporation that is owned in whole or in part by a corporation located outside the 
United States has the same right to groundwater for nontraditional use as a domestic 
corporation upon demonstration that the foreign corporation and its subsidiaries are not 
involved in terrorist activities anywhere in the world. 
Sec. 3. 38 MRS A §S70-M, sub-§2, as enacted by PL 2001, c. 626, § 15, IS 
amended to read: 
2. Authorized water transporter. A person authorized to transport water under 
Title 22, section 2660 A 410-T using water in confonnance with rules adopted under that 
section; or 
Sec. 4. Study of the public trust doctrine and allocation as applied to 
groundwater. The Freshwater Resource Board as established pursuant to the Maine 
Revised Statutes, Title 38, section 410-R shall study whether the interconnectivity 
between surface water and groundwater warrants an extension of the public trust doctrine, 
now applicable to surface water in the great ponds and tidal rivers, to other surface water 
and to groundwater. The Freshwater Resource 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 completed studies must be submitted to 
the Governor and the Legislature within 18 months of the effective date of this Act. 
SUMMARY 
This bill provides for the creation of the Freshwater Resource Board to protect Maine 
groundwater, to protect the rights of all persons who own homes, farms and businesses 
over the groundwater and to protect the surface water that benefits from groundwater and 
the plants and wildlife that benefit. The bill provides for the continuation of water 
removal by water bottling interests when the removal of water does not threaten these 
goals. The bulk water transport permitting process is amended to make clear that 
transport for bottling is permitted. The bill transfers the authority to issue bulk water 
transport permits from the Commissioner of Health and Human Services to the 
Freshwater Resource Board and to also convey the power to set fees to carry out this law 
from the commissioner to the board.