Fryeburg Water Co. wins supreme court case over bulk pumping

By David Carkhuff

A Fryeburg board was wrong to try to halt Fryeburg Water Company's sales of millions of gallons of ground water to Pure Mountain Springs under the town's current land-use ordinance, the state supreme court ruled Thursday, March 30.The Maine Supreme Judicial Court, siding with Fryeburg Water Co., upheld an exemption of the water company from a local planning board permit. The permit regulates bulk-water extraction of more than 10,000 gallons per day.SF LLC, represented by Tom Shaffner, an abutter to water company property, argued that the Fryeburg Water Co. placed itself under the town's land-use ordinance by making improvements to pump houses. A section of town ordinance requires planning board approval for "enlarged, extended or expanded" use of property even when the property is grandfathered. Improvements to pump houses represented such an "expanded" use, Shaffner argued. He wanted the town's code enforcement officer to issue a cease-and-desist order to stop sales of water to Pure Mountain Springs. David Gould, the enforcement officer, declined. The Fryeburg Board of Appeals sided with Shaffner. Under appeal in Oxford County Superior Court, Fryeburg Water Co. won its case for exemption from the current land-use ordinance, and its right to pump was upheld. SF LLC appealed to the supreme court.In Fryeburg Water Company v. Town of Fryeburg et al., the supreme court upheld the superior court's ruling. The supreme court wrote, "SF's attempt to challenge the permits that may have led to the increased pumping of ground water is not timely, and the Board of Appeals erred in concluding that FWC had engaged in a prohibited 'expansion of use' under the local ordinance."In an interview on Monday, SF LLC attorney Scott Anderson said, "The result is the Fryeburg Water Co. need not come back to the planning board to get approval for what it's doing, and now it's up to the planning board and the town to do something about that."Peter Hastings, representing the Fryeburg Water Co., said the supreme court backed up the superior court's finding that the town had no right to issue a cease-and-desist order."They upheld the right of the company to continue," he said Monday.Water pumping for all users including municipal customers and Pure Mountain Springs has increased steadily in recent years, Hastings said.The supreme court reflected these increases in its decision (see www.courts.state.me.us/opinions/2006%20documents%20/06me31fr.htm). The court wrote, "The amount of ground water being pumped by FWC fluctuated, but generally increased from 240,370 gallons per day in 1997 to 583,279 gallons per day in 2003."That marks an increase in overall pumping from over 90 million gallons a year in 1997 to 212.897 million gallons a year in 2003. "The big increase has been for Pure Mountain Springs," Hastings confirmed.But Hastings pointed out that the water company already had received its special exception permit allowing sales to Pure Mountain Springs back in 1997."That expansion of water sales was not prohibited under the ordinance," Hastings explained. "In summary, really the town officials made the right decision, but the board of appeals got caught making an error."Now that the case is decided, Anderson said an ongoing update of the town's land-use ordinance might be a way to control the water company's bulk water sales."If the planning board amends the ordinance to require all entities that want to pump water for sale in bottling operations to come to the table, that's how the town is going to be able to comprehensively handle this situation," he said.But Gene Bergoffen, member of the planning board, cautioned that Fryeburg Water Company's existing agreements to sell water to Pure Mountain Springs will not be affected by any new regulations. Those sales will remain grandfathered, he noted.Bergoffen, who is heading up a water-related update of the town's land-use ordinance, expected a preliminary hearing on a draft document, tentatively this spring. Then, planning board will bring the draft ordinance to selectmen and ultimately present the wording at a special town meeting, he said.Bergoffen said he welcomed this new authority to regulate bulk-water withdrawals."I've always felt that all uses ought to be under an umbrella approach so the planning board can monitor the uses of the aquifer, and if it finds that it's being overused, depending on the definition of 'overused,' the board's in a position to limit uses," Bergoffen said.With the supreme court's determination that Fryeburg Water Co. sales to Pure Mountain Springs effectively are grandfathered, Bergoffen said the town may be able to defuse concerns over commercial water withdrawals by another approach."I'm hoping that we can get there one way or another," Bergoffen said.Voters recently created the Fryeburg Water District, which could buy the water company and place control of bulk-water sales into the hands of a board. Hastings said the water company is awaiting a water district election of directors, and then sales negotiations can proceed.Meanwhile, WE Corp., a second company venturing into bulk water sales in Fryeburg, has received a permit to extract up to 450,000 gallons of water a day, or 164.3 million gallons a year. WE Corp. was granted its permit, but with strings attached. The company's permit comes with stipulations that water withdrawals can be reduced if new information suggests a risk to the aquifer.Such an order, if issued, may be based on a recent hydrogeological study from Emery & Garrett Groundwater Inc., of Waterville, Maine. This study confirmed that the two commercial pumpers Pure Mountain Springs and WE Corp. are in a position, based on their permit limits, to pump more than the capacity of the aquifer. The Emery & Garrett report urged the town to make no more than 603,000 gallons per day available to commercial pumpers, while Pure Mountain Springs and WE Corp. are permitted to pump more than 750,000 gallons a day, based on current figures. Planners have pointed out that over-pumping is unlikely based on the provision in WE Corp.'s permit allowing planning board to step in and protect the aquifer.Assistant editor David Carkhuff can be contacted at david@conwaydailysun.com.