Debate continues over proposal by tribe to tap into Perry aquifer

Debate over a bill that would allow the Passamaquoddy Tribe to tap into a groundwater aquifer in Perry to provide drinking water to Sipayik is continuing in the legislature, with tribal representatives claiming that the town's ordinance on water extraction is unconstitutional, since it targets the tribe, while Perry officials are opposing the legislation. The amended bill, sponsored by Passamaquoddy Rep. Rena Newell, would allow the tribe to regulate drinking water in its territory and to add two parcels of land in Perry through the federal acquisition process into trust, without municipal approval. Many tribal members at Sipayik do not use the water provided by the Passamaquoddy Water District (PWD) from Boyden's Lake because of concerns about whether it is safe to drink.
In October 2013 the Town of Perry did initially enact a six-month moratorium on large-scale groundwater extraction after a pump test undertaken by the tribal government on land it owns in Perry, in which a million gallons of water were pumped out over 10 days, 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 While the moratorium is no longer in effect, at a town meeting in August 2014 the town enacted a large-scale water extraction ordinance, which requires planning board and code enforcement officer approval for water extraction.
During the work session on the bill by the legislature's Judiciary Committee on March 3, Michael Corey Hinton, a tribal citizen and attorney for the tribal government, noted that the tribe and the federal government did replace between three and five wells that had gone dry after the pump test. He said the town's ordinance requires "a costly process" for any large water extraction and argued that it is "an unconstitutional deprivation of property rights and discriminatory against the tribe." He equated the ordinance to laws in the deep South that are not explicitly discriminatory but are in their intent.
In her testimony to the committee, former Perry Select Board Chair Karen Raye asked what provisions of the ordinance are unacceptable, noting that it requires due diligence on geologic and hydrologic performance standards, an understanding of the impact on the general vicinity of any large-scale water extraction, and the implementation of a complaint protocol.
In addition, the ordinance does require 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.
One of the wells that went dry during the 10-day pump test was owned by Jay and Tammy Pearson, who submitted a statement to the committee saying that they had not been informed about the pump test and they were "scared that we are headed back down this road again if the concerned properties are allowed to be placed in trust with no local oversight."
During the work session, Senator Lisa Keim of Dixfield, a member of the committee, said that she was familiar with Poland Springs' effort to extract water in western Maine and that a town could enact an ordinance to protect residents' wells without the ordinance being discriminatory. Hinton, though, argued that the Perry ordinance "targeted one landowner in Perry," the Passamaquoddy Tribe. He also noted that in the early 1990s, when the tribe was facing a housing shortage, the tribe sought to place into trust land that it owned in Perry to provide new housing, but "the town required the tribe to pay $350,000" to allow the tribe to place the property into trust. "The tribe cannot afford" to make such payments to the town, which is "why local consent is not being sought" for placing the two parcels into trust this time. Hinton maintained that the town has shown it does "not honor tribal self-determination." He also said the comparison with Poland Springs was not fair, as the tribe is just seeking to supply water for local residents.
Questioned whether the town was being discriminatory with its ordinance, the current chair of the Perry Select Board, Ann Bellefleur, said it applies to any water project proposed in the town but that with the pump tests in 2013 "something had to be done before it went too far." She said the selectmen at the time "acted in what was in the best interest of Perry citizens." As for any groundwater extraction proposals now, Bellefleur said if the tribe "came to us now, we would work with you."
The Perry Select Board had not been informed about the provisions of the bill until their meeting the night of February 15, just before the committee's public hearing on February 17, and had not submitted testimony for the hearing. In their statement to the committee for the work session, the select board wrote that the ordinance "was not to bar large-scale water extraction but to allow use of water resources in a manner to protect the quality and quantity of groundwater, spring water and aquifers." The select board opposes the bill, stating that it would deprive the town "of the ability to control the expansion of Indian territory within its limits; it would greatly limit state and local authority over water quality; and it would subordinate and render meaningless the town's important and environmentally responsible extraction ordinance." However, the town is "prepared to work with" the tribe and other parties to ensure access to clean drinking water.
As for placing two parcels of land in Perry that are owned by the tribe into federal trust status, Hinton said that on one of the parcels, which is near the new Sipayik Elementary School, the tribe placed an electric pump on a well so that individual tribal members could get water for their households. The other parcel is the former Humphries farm where the tribe had done the pump test in 2013 to see if the aquifer would have a sufficient quantity of water to be a sustainable groundwater source of drinking water. For the two parcels, which total about 55 acres, the tribal government pays just over $4,800 in taxes a year to Perry. Hinton said that if the property is placed into trust, the tribe would make a payment in lieu of taxes to the county.
If the land is placed in trust and the tribe does pump groundwater from the aquifer, Hinton said there would be funds made available to help offset "any adverse impacts" to nearby wells. There would also be federal safeguards to protect private property, including wells, if they were negatively affected. But he said, "The question is: Should Perry hold veto over the tribe and Eastport." He maintained that the town has obstructed the efforts by the tribe to receive clean drinking water, "but they are not the people who receive brown water."
Bellefleur said the placing of the land into trust would effectively "override" the town's ordinance, and if the tribe doesn't have to abide by the ordinance the entire town would be affected. She said the ordinance is not targeted at any one group; it's for anyone who seeks to extract large volumes of water in the town.
The tribe has funding for another feasibility study to look at alternative water sources again. Michael Abbott, environmental health director with the Maine Center for Disease Control and Prevention (CDC), noted that, even if the bill is enacted, the state would still have oversight over any pump tests in the future. Water quality issues
Along with concerns about the color, taste and smell of the water, Sipayik residents worry about the long-term health impact from trihalomethanes (THMs), which are formed when organic compounds in the water come in contact with chlorine, which is added as a disinfectant at the water treatment plant. Different THMs that can be formed are classified as either possible or probable human carcinogens by the U.S. Environmental Protection Agency (EPA). Hinton said the tribe is looking at the possible health impact of THMs on tribal members at Sipayik.
While the PWD is currently in compliance with all Safe Drinking Water Act requirements, over the past 13 years there have been eight times when the PWD's tests exceeded the 80 parts per billion maximum allowable limit set by the EPA for total THM levels. 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.
However, the tribal government had water samples from 10 locations on the reservation, where the PWD does not take samples, tested by a private laboratory twice in the fall of 2021. All of the samples tested above the THM limit in October, but none of them were over the limit in November.
Questioned why Eastport residents are not "up in arms" over the water quality, Bellefleur, who is also the business manager for the PWD, said the water district has "very few complaints" from the residents in the city. Mark McCluskey of A.E. Hodsdon in Waterville, a consulting engineering firm for the PWD, who is the licensed operator for the PWD's water treatment plant, said he had only investigated one complaint in Eastport, and that was because a water line was being flushed next to the person's house. Over the past 30 years or more, though, a number of Eastport homeowners have had private wells drilled. The PWD serves approximately 700 customers in Eastport and the tribe as a whole, which is considered one customer, with three master meters at the reservation and the tribal government paying the bill. There are about 645 tribal members living at Sipayik.
As for why there could be a difference in water quality between Eastport and Sipayik, including THM levels, McCluskey stated, "There's nothing we do for the water for Eastport that we don't do for the reservation." However, he noted that bleeders are run on the lines in Eastport to release water in the lines and to help keep the water fresh, while that is not done at Sipayik, where the lines are owned and maintained by the tribal government. Abbott noted that bleeding the lines in Eastport "may be helping with the water quality." He added, "Bleeders at Pleasant Point could help." But he stated that improving the quality of the water at the treatment plant "will probably have the biggest impact."
Noting that the Boyden's Lake water source can be "challenging to manage," particularly after "a big rain, snow melt or wind event," Abbott pointed to a new carbon filtration system that is scheduled to be installed at the treatment plant in June. It will remove dissolved organic compounds, so that chlorine will not be reacting with them to form THMs, and should also improve the water's color, taste and odor. "I hope it will improve the quality, but there's no guarantee of that," he said.

Regulatory authority options
The bill has been amended to address concerns about having two separate authorities regulating the PWD's water quality. Under the latest version, the Maine Implementing Act would be amended to provide that, unless the tribe and the state enter an agreement granting the state concurrent jurisdiction over drinking water issues, the tribe would have exclusive authority to adopt ordinances to regulate drinking water within Passamaquoddy territory, which would include the reservations and trust lands. While the tribe may seek primary enforcement authority to implement the federal Safe Drinking Water Act, if it does not, then the federal EPA would have that authority.
Abbott said if the PWD was under federal regulation it would have to meet the same requirements as the state enforces. If the tribe were to have authority to regulate the water quality in its territory, he was not sure how that would be implemented, since there would be two regulatory authorities for the PWD. He did note that the standards of the Safe Drinking Water Act are the same, whether they are administered by the U.S. EPA, the state or a tribe.

Tax-exempt status sought
The bill also would amend the water district's charter to make it exempt from municipal taxation, bringing it in alignment with all of the other water districts in Maine. Although a 1998 Maine Supreme Court decision concluded that the PWD's charter does not allow it to be tax-exempt, the legislature can repeal that provision in the charter.
Eastport City Manager Kate Devonshire told the committee that the loss of $43,000 in tax revenue would be "detrimental" but that "we could make it work." Concerning the water quality, Devonshire said that residents in Eastport "are not having the same issues with the water" as Sipayik residents are reporting.
As for the $23,000 tax loss in Perry, Bellefleur, in her capacity as Perry first selectman, said that "any increase in taxes will hurt" taxpayers in the town. However, Rep. Jeffrey Evangelos of Friendship, a member of the committee, felt that, since the overlay in both the city and town's budgets is greater than the potential tax loss, the effect would be "negligible."
McCluskey said the funding provided through the PWD becoming tax exempt could help with water quality projects, noting that the new carbon filtration system is expected to require an expense of about $60,000 perhaps every year to replace the filters.
Another work session was scheduled to be held on the bill on March 10.