Bill would allow tribe to tap into Perry aquifer for drinking water

A legislative bill that would allow the Passamaquoddy Tribe to tap into a groundwater aquifer in Perry to provide drinking water to Sipayik garnered a great deal of support during a hearing by the legislature's Judiciary Committee on February 17, with over 100 people providing testimony in favor of the measure. Although the drinking water provided by the Passamaquoddy Water District (PWD) from Boyden Lake to Eastport and Sipayik residents is in compliance with all drinking water regulations, many tribal members at Sipayik do not use the water because of its taste, odor and color and concerns about whether it is safe to drink. Instead they collect water from nearby springs or use bottled water, with the Good Shepherd Food Bank providing the water at the request of Wabanaki Public Health and Wellness.
The bill would amend the water district's charter to make it exempt from municipal taxation, bringing it in alignment with other water districts in Maine, all of which are tax-exempt; add two parcels of tribally-owned land into trust so that the tribe can access groundwater without state or local approval; and allow the federal government and the tribe, instead of the state, to regulate drinking water on tribal territory like other tribes in the country.
The sponsor of the bill, Passamaquoddy Rep. Rena Newell, said the issue is "a public health crisis" and pointed to the "inconsistent quality of the drinking water" provided by the PWD, saying it changes with the seasons and after storms. She stated that "having access to clean, clear, odorless drinking water is vital to healthy living and is a basic human right that should not be denied to the Passamaquoddy tribal citizens at Sipayik."
Passamaquoddy Chief Elizabeth "Maggie" Dana of Sipayik said the tribe pays over $100,000 a year to the PWD for water that is "discolored, smells foul and tastes bad." The tribal government is billed for water usage for all of Sipayik based on a single water meter. Stating that it can ruin laundry if clothes are washed in it, Chief Dana said, "It makes you wonder if it's safe to drink." She added, "We are not getting what we pay for year after year."
Vice Chief Ernest Neptune noted that the new elementary school does not allow students to drink the PWD water. The tribal government has attempted to provide a new community water source through a well near the school, but licensing of the well has led to disputes over whether the state or federal government would regulate the water quality. Neptune stated, "We choose to regulate ourselves. We want clean water for our children, elders and our neighbors."
Water quality issues reviewed
Testimony from the Maine Drinking Water Program provided by Nancy Beardsley, deputy director of the Maine Center for Disease Control and Prevention, noted that the management of the water quality in the Boyden Stream reservoir can be challenging when there is rain and wind. "The ever-changing nature of this water body can create occasional discoloration of the water along with taste and odor issues. In addition, when organics come into contact with chlorine, which is added as a disinfectant to keep the water free of bacteria, disinfection byproducts can form." The different trihalomethanes (THMs) that can be formed are classified as either possible or probable human carcinogens by the U.S. Environmental Protection Agency (EPA). The PWD has struggled with the issue of THMs in the drinking water for years.
Beardsley's testimony noted, "Over the past two decades a substantial amount of effort and financial resources have been dedicated to improving water treatment capability, storage tanks and distribution piping network to enable the Passamaquoddy Water District to deliver water meeting all applicable state and federal drinking water standards. The water district is currently in compliance with these standards. However, the limited capacity of the current treatment plant continues to present a significant challenge in maintaining a continuous level of quality in the water delivered to people's homes."
In addition to upgrades undertaken over the years by the PWD, the Maine CDC's testimony outlined the current plan to install a carbon filtration system to remove organics from the water prior to the disinfection progress. The upgrade should result "in a dramatic improvement" in taste and color and also help eliminate the presence of THMs. A total of $835,500 in funding for the filtration system has been obtained from the state and federal governments and Wabanaki Public Health and Wellness. The PWD reports that the new filters will be arriving in June and that the filters should not take very long to install. In addition to the initial cost, there will be a cost of approximately $60,000 to replace the filters, perhaps every year or two. The frequency of the replacement will be determined by the water quality.
Responding to concerns about the water quality, Mark McCluskey of A.E. Hodsdon in Waterville, a consulting engineering firm for the PWD, states, "We are in full compliance with the Safe Drinking Water Act requirements, and the water is safe to drink." THM levels are tested on a quarterly basis, and he reports that over the past 13 years there have been eight times when the tests exceeded the 80 parts per billion (ppb) maximum allowable limit set by the EPA. The last boil order for PWD water was issued in August 2011 because of high turbidity in the water caused by run-off from a bog. McCluskey comments, "If at any time the water was unsafe to drink, there would be a boil order issued."
While the last time that the PWD water tested over the THM limit, at 81.6 ppb -- just above the allowable level -- was in November 2020, the tribal government in September 2021 had water samples collected from 10 locations on the reservation tested for THMs by a private laboratory, and most of the samples tested above the maximum allowable limit for THMs, according to William Longfellow, an environmental technician with the Sipayik Environmental Department, in his testimony. It's not clear why those water samples exceeded THM limits while the PWD samples, which are not collected on the reservation, were within the allowable levels, and it's possible that more frequent flushing of the water lines at Sipayik, which are owned and maintained by the tribal government, could help resolve that issue.
Because of concerns raised about the safety of the PWD, an independent water-quality study conducted by Massachusetts Institute of Technology environmental engineering graduate students in 2018 had looked at arsenic and lead in both PWD water and area wells and found that none of the PWD water samples exceeded the EPA's arsenic guidelines but 13% of the private wells sampled had arsenic levels above the standards. Private wells serving a household do not have to meet state or federal testing requirements. Over 300 households in Sipayik, Perry and Eastport had submitted samples for testing.
Groundwater source eyed
During the committee hearing, Michael Corey Hinton, a tribal citizen and attorney for the tribe, noted that the tribe has been pushing for a number of years to access groundwater sources to replace the PWD water, but he said, "Current law does not support solutions to these problems," adding that "local ordinances were put in place to obstruct the tribe's efforts to access water."
He said the tribe will proceed with a feasibility study with the federal Indian Health Service for a new groundwater source, as the state's path "has not yielded results." When questioned by a committee member, Rep. Newell said she could not say if a new groundwater source would also serve Eastport.
The two properties that would be placed in trust are the land across from the new Sipayik Elementary School where the tribe has a well; and the former Humphries farm in Perry where the tribe has conducted well testing in the past. With the land being placed in trust, it would not be subject to state or local regulation.
In October 2013 the Town of Perry did initially enact a six-month moratorium on large-scale groundwater extraction after a 10-day pump test undertaken by the tribal government on land it owns in Perry caused several wells at nearby homes to be drawn down or to go dry. Some of those residents said they had not been notified that a test would be occurring. The tribal government was having both the water quality and quantity of the groundwater tested as part of a study to find a new source of water. While the moratorium is no longer in effect, in August 2014 the town enacted a large-scale water extraction ordinance, which requires planning board and code enforcement officer approval for water extraction. The ordinance requires performance standards, including that any water extraction not adversely affect the long-term sustainability of the aquifer and that sampling of water quality and quantity be conducted for private wells in the area, with the cost to be paid for by the applicant.
Hinton said that Perry's water extraction ordinance would place "a costly burden" on water extraction in the town. The tribe has not challenged the ordinance, and Hinton said, "We want to work with the town and the city." Any changes to the ordinance would be proposed to the town by the Perry Planning Board.
Regulation and tax exemption
Another provision of the proposed legislation -- having the federal EPA be the primary regulator for drinking water on tribal territory -- would mean that the tribe would have the same water quality standards as the state, but the provision could allow for the tribe to permit wells on tribal lands, according to Hinton.
While no one testified in opposition to the bill, Gerald Reid, chief legal counsel to Governor Janet Mills, supported the tax exemption and land provisions but expressed concern about the tribe becoming the primary regulator of the PWD in tribal territory, as the district would then be regulated by two entities -- the tribe within the reservation and the state in Eastport. The governor's office feels that the water district should be regulated as a coherent whole. The PWD is a quasi-municipal corporation with a five-member board, three from Sipayik and one each from Eastport and Perry, as required by its charter. It is the only water utility in the state that is not tax-exempt. The third provision of the bill -- tax-exemption status -- would provide some funding that the water district could use to make infrastructure upgrades. Currently, the PWD pays $40,000 a year in taxes in Eastport and $20,000 in Perry. However, Rep. Jennifer Poirier of Skowhegan, a member of the committee, pointed to a 1998 Maine Supreme Court decision that said because the water district was purchased by the PWD from a privately owned water company, General Waterworks of Philadelphia, that was taxed, the PWD could not be tax exempt. "Can we override a Supreme Court ruling?" she asked.
The Judiciary Committee will hold a work session on the bill on March 3.