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Fryeburg’s updated water ordinance panned, promoted

After postponement of voting last fall, Saturday’s warrant contains 19-page amendment
By David Carkhuff,  March 15, 2007  Conway Daily SunFRYEBURG—Don’t dive in so quickly, say skeptics of a water-related land-use ordinance amendment that appears on Saturday’s warrant in Fryeburg.
Supporters of the amendment — which, among its numerous provisions, sets “sustainability limits” on ground-water pumping to protect the local aquifer from new users — respond that the time has come to update the town’s rules for development. They say the town should provide oversight of a new, burgeoning land use — commercial water extraction by the bottled-water industry.

The 19-page amendment dealing with bulk water withdrawals can be viewed on the town’s Web site (www.fryeburgmaine.org).

The amendment appears as Article No. 17 on the town warrant, which is up for vote at Fryeburg’s town meeting on Saturday, March 17. The town meeting starts at 9 a.m. in the Fryeburg Fire House on Main Street.

Selectman David Knapp said of the water-related ordinance, “It’s very complex. There are issues on both sides that are valid concerns.”

For those concerned about existing withdrawals, “It’s more restrictive for any business that’s coming into town, but it doesn’t prevent the withdrawal of water by those persons who are withdrawing at the moment,” Knapp noted.

Indeed, the new ordinance language applies to applicants for new ground-water pumping permits. Nestlé Waters North America, the nation’s largest bottled water company, already has grandfathered access to Fryeburg water through existing arrangements with Pure Mountain Springs, an intermediary that buys its water from the Fryeburg Water Co.

Even the town’s existing land-use ordinance doesn’t apply to Pure Mountain Springs, Nestle Water’s local supplier, a court has determined.

On Sept. 1, 2004, Fryeburg Board of Appeals found by a 3-2 vote that the town’s code enforcement officer should have issued a cease and desist order against the Fryeburg Water Company and Pure Mountain Springs for lack of a local permit. Ultimately, the town lost its case in court and Pure Mountain Springs was found to be exempt from the existing permit.

The proposed land-use ordinance update aims to regulate new applicants for water-withdrawal permits looking to pump 10,000 gallons of water a day or more. (In 2003, Fryeburg Water Co. sold about 80 million gallons — or 220,000 gallons per day — through Pure Mountain Springs, based on water company documentation shared by the appeals board.)

“To the degree we’ve tried to protect the resource, we’ve done it,” said Fryeburg Planning Board Chair Gene Bergoffen.

The updated ordinance sets a sustainability limit, a withdrawal total of 603,000 gallons per day, over and above Fryeburg Water Co. use — although a clause under “sustainability” allows the planning board to revise this limit based on “new information.” and adjust this figure following a public hearing and public notice.

Nobody says the ordinance is simple. At a special town meeting on Sept. 28, 2006, Fryeburg citizens postponed voting on the controversial amendment, complaining it was too confusing. Critics of the ordinance and even Bergoffen himself, who was instrumental in the ordinance’s creation, conceded at the time that a delay was in order so the planning board could educate the public on the ordinance’s implications.

Now, after a string of public forums about the ordinance, Bergoffen asked, “Why should we spend more time? No one has come forward to me or the board or anyone else with a description of what more we would learn and who will provide the information and fund future studies that are worth waiting for.”
But skeptics abound.

Scott Gamwell, who lives in East Fryeburg, suggested the ordinance may be premature. Planning board has tabled the issue of where commercial operations are allowed until updates can be made to the comprehensive plan.

“The permitting of water extractors is allowed in all except one district throughout the town of Fryeburg, which means you can have trucks 24 hours a day, 365 days a year in rural residential districts. Nestle Waters of North America is suing the town of Fryeburg at the supreme court level in the state of Maine over this exact issue. So this new ordinance gives no protection to rural residential districts. Why not wait until the court case is finished?” Gamwell asked.
The litigation he mentioned surrounds a proposed facility in East Fryeburg where Nestle Waters of North America plans to pump in water from Denmark and load the water into tanker trucks for transport to bottling plants. The water will be sold as the Nestle Waters brand, Poland Spring.

Opponents of the Poland Spring truck-filling station say Fryeburg Planning Board denied due process for abutters to the proposed facility, based on a local appeal filed Nov. 17, 2005. Since this appeal was filed, local approval of the truck-filling station has gone all the way to the Maine Supreme Judicial Court.
Gamwell said, “Local planning boards are judged by their decisions. And our planning board decided that Poland Spring trucks coming every eight to nine minutes 24 hours a day, 365 days a year in a rural residential district was a non-intensive business, and I’m concerned that this logic is being extended to water extraction as well.”

The town needs to come to grips with its planning direction, Gamwell said.

“Do they want to make Fryeburg the tanker truck capital of Western Maine? Do they want it to be the water-extraction hub of Western Maine? Until the people in Fryeburg give some direction to the planning board, we’re all going to keep beating our heads against the wall,” Gamwell said.

Robin Johnson said she attended meetings on the proposed land-use ordinance amendment and remains unconvinced it’s ready for adoption.

“I would simply say that I think that there’s no need to rush into this, I know planning board has worked a lot of hours to develop this new land-use ordinance. I personally don’t feel this is finished. There’s no reason they can’t spend some more time,” she said.

The ordinance could benefit from additional research on effects of water withdrawals on Lovewell Pond, Johnson said.

Bergoffen said the ordinance provides strong protection for Lovewell Pond. In a recent letter, he wrote, “Limits on new withdrawals are based on very conservative amounts based in part on (1) accommodating a minimum flow of at least 425,000 gallons per day from the aquifer into Wards Brook and Lovewell Pond, and (2) a 25 percent safety factor to accommodate a drought year. To date, there is no objective, scientific-base data, or factual documented evidence that shows that current withdrawal levels have an adverse effect on the Lovewell Pond lake system, or its related resources. There have been well meaning assertions and hypotheses that withdrawals harm the lake, and if they can be proven, the board will be in a position to change its permit parameters.”
The draft ordinance’s pumping limits were established based on research by Peter Garrett of Emery & Garrett Groundwater Inc., consultants to the Town of Fryeburg.

The ordinance reads, “The withdrawal must not exceed a sustainable flow from the water source, based on the August 2005 report by Emery and Garrett Groundwater Inc. Unless and until the planning board determines otherwise, based on consultation with an independent hydrogeologist, and other experts in stream and lake science, as it deems appropriate, the planning board will permit allowable water withdrawals so that the total withdrawals will be no more than 603,000 gallons per day of water not required for (1) municipal water use; (2) maintenance of minimum stream flows; and (3) accommodation of potential drought conditions, as calculated in the Emery and Garrett report.”

Garrett’s privately-funded aquifer study was launched partly in reaction to Poland Spring’s plans for a bottling plant, initially in Fryeburg. (Last fall, the company won approval to build its plant in Kingfield, an approval now facing a regulatory appeal in that town.)

During a May 10, 2005, briefing, Garrett gave a report about Fryeburg’s aquifer and laid out his recommended limits on pumping. Garrett subtracted Fryeburg Water Co. use and Wards Brook minimum flows from the aquifer’s capacity to develop a discretionary amount of water available to pumpers. To be safe, 75 percent of this available discretionary amount was allowed. This resulted in the 603,000-gallon figure for maximum bulk-water withdrawal.

Bergoffen wrote, “Over the past year, I had the privilege of representing Fryeburg on the State of Maine’s Groundwater Study Group, which presented an important report to the State’s Land Water Resource Council. During Study Group discussions, Fryeburg’s draft ordinance and our approach to a scientifically based consideration of future uses was considered a cutting edge effort in the state, and a model for town-level management of water issues. I urge my fellow town citizens to see this ordinance in the same light, and approve Warrant Item No. 17 on Saturday.”

Johnson said the new ordinance is too important to pass without full understanding.

“I would suggest to people to table it for a year,” she said. “That’s not to say that they haven’t spent a lot of time on it. I truly feel it is not done. Nobody really understands it. It’s written in language that a regular person can’t understand.”

Bergoffen said study of the aquifer will not end with the ordinance’s approval.

“You’ve got to continue to learn, you’ve got to watch the environment around you. We’ve learned a huge amount of information, and we ought to guide current and future decisions on what we know, not on what we want to wait for,” he said.

“What we’re saying is let’s put into law what we know. The implication that we ought to wait because this is not good information has not been substantiated,” Bergoffen said.

Assistant Editor David Carkhuff can be contacted at david@conwaydailysun.com.

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