Legislative panel splits over tribe’s drinking water bill

A legislative committee was evenly divided on recommending a bill that would allow the Passamaquoddy Tribe to tap into a groundwater aquifer in Perry to provide drinking water to Sipayik and Eastport. During a work session on March 10, seven members of the Judiciary Committee voted for the bill and seven against, with two of those members favoring the removal of the sections of the bill that would allow the tribe to be the primary regulator of drinking water within Passamaquoddy territory. Those two members argued that, since the governor's office has objected to the primacy provisions, then the bill would be less likely to be vetoed without those sections.
The bill would amend the charter of the Passamaquoddy Water District (PWD) to make it exempt from municipal taxation; allow the tribe to add two parcels of land it owns in Perry through the federal acquisition process into trust; and allow the federal government and the tribe to regulate drinking water on tribal territory. While other lands that tribes own in a Maine municipality that have been placed in trust have received municipal approval, the bill would allow for the parcels in Perry to be put into trust status without the town's approval. If the lands are placed in trust, the town's ordinance on large-scale water extraction would not apply.
The bill's proposals and the process that has been followed led to some sharp comments from committee members. With no public comments from Eastport residents submitted for the February 17 public hearing and the Perry selectmen having been informed about the provisions of the bill only a day and a half before the hearing, Senator Lisa Keim of Dixfield argued that the bill is seeking to take property out of Perry and tax money from Eastport and Perry "by fiat. It's an unfair treatment of those community members," since she said that they had not been asked to work collaboratively on the water quality issue. Residents of the municipalities have not been asked to vote on making the PWD tax-exempt, with the resulting loss of tax revenue, and Perry residents have not been asked about the properties being placed into trust. The Perry selectmen did file a letter in opposition to the bill before the March 3 work session, and Perry, Eastport and PWD officials participated in that later discussion with the committee.
Senator Keim also argued that some are assuming that the residents of Perry are being discriminatory and would not want to work with the tribe on addressing the water quality. "Instead, we step over them, we take their money, we take their land. We do this because we listen to what only one community in the water district desires. The other communities don't matter." She maintained that "every other town in the state should be terrified by the precedent" being set by the committee.
Noting that the tribal government never filed an application with Perry to be permitted for large-scale water extraction under the town's ordinance, Rep. Laurel Libby of Auburn commented, "This bill is an end run around the Town of Perry." And Rep. Jennifer Poirier of Skowhegan added that the residents of Eastport and Perry "deserve a seat at the table. They have been silenced through this whole process." She also felt that the legislation may be premature, as "not all options have been looked at."
However, Rep. Lois Reckitt of South Portland said, "I don't want one town to prevent another community from having clean drinking water."
And the sponsor of the bill, Passamaquoddy Rep. Rena Newell, noted that the bill would "provide an option to explore an alternate source" of water that could be used by residents of Sipayik and Eastport. "It's not the intent of the tribe to cut off the water district." The aquifer in Perry could possibly be used either to replace the PWD's current supply of water from Boyden's Lake or to supplement that source during periods when the water quality is not as good.
Rep. Newell stated that for the past 40 years the tribal community at Pleasant Point has received "inconsistent water quality." She added, "The ability of our neighbors to vote yes or no on what's good for Pleasant Point limits our relationship."
"This is not a political issue. It is an issue of human rights," she said, so that tribal members can have access to clean drinking water. "It is an assertion of the tribe's inherent right to exercise self-determination."
It was previously noted that the bill's provision to have the PWD become tax-exempt would provide funding to help cover the cost of replacing the carbon filters in the new filtration system that is expected to be installed in June and should improve the water quality. The water district would save about $66,000 a year if it becomes tax-exempt, and the cost for the filter replacement may be about $60,000 perhaps every year.

Debate over regulation
Under the bill, 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. The tribe's standards would have to be at least as strict as federal standards. While the tribe would be able to seek primary enforcement authority to implement the federal Safe Drinking Water Act, if it does not, then the federal Environmental Protection Agency (EPA) would have that authority.
Gerald Reid, chief legal counsel for Governor Mills, argued that the provisions concerning regulation of the water quality would "do nothing to address the water quality problems" and would cause confusion, as there potentially could be two different regulators for the same water system. If the PWD had to comply with stricter standards to provide water to Sipayik, then any required infrastructure changes could have an impact on ratepayers in Eastport. He said he would recommend that the governor veto the bill if the jurisdictional change is included.
However, Michael Corey Hinton, a tribal citizen and attorney for the tribal government, said that the provision would not give the tribe primary regulatory authority over drinking water on its lands; instead that authority would be given to the EPA, and its regulations are the same as the state's standards. He noted that only one tribe in the U.S., the Navajo Nation, has undertaken the process to regulate drinking water on its lands, and the agreement between the off-reservation water utility and the tribe has worked well.
The Passamaquoddy Tribe has tried to establish a well on its lands to supply water for its elementary school but was told it needs state approval for the well. The other option is "to supply brown water from a state-regulated utility," Hinton said. He added, "The tribe's desire is only to regulate" drinking water on tribal lands. "There is simply no basis in fact that the tribe's effort to regulate would allow it to more stringently regulate an off-reservation water supply."
Hinton said the tribe wants to work with the PWD to explore the groundwater option. "We have no desire to choke off water for our neighbors," he said. "Our entire purpose here is to supply clean water for Eastport residents and Pleasant Point residents."
The bill will now be considered by the House and Senate in the coming weeks.