Who Owns Maine’s Water?

by JIM WILFONG

If I had any doubts about the influence of Nestle Inc., the global water giant, in my state, they were dispelled the day last June I received a communication from the Maine Secretary of State (SOS). The SOS is elected by the majority party in the Legislature, currently Democrats, which means he is basically a functionary of the Democratic Party. What he does is what the Democrats want.

A group of us had drafted a ballot initiative to ensure that groundwater in Maine is subject to the same degree of protection that surface waters are. As the law requires, we submitted the proposal to the SOS who then wrote the wording that would appear on the ballot. When I opened the letter from the SOS’s office with the final wording, I was stunned.

The ballot question this official had drafted started this way, "Do you want to transfer private ownership of groundwater to the State?" It was like a punch in the gut. Why didn’t he just call us a bunch of commies and be done with it?

The fact is, nothing in our proposal transferred ownership of anything. To the contrary, it simply asserted the responsibility of the government to manage our water for the benefit of the real owners — us citizens, future as well as present. As I said, surface waters already get such protection. The distinction between surface and ground water that exists in current, judge-made law is antiquated, and is no longer tenable scientifically.

I made these points to the Secretary of State, but to no avail. I had a vague feeling of background voices in these exchanges, and so I asked to see the official file. There, among the other documents, I found a letter from Nestle’s attorneys, who had urged specific wording for our ballot measure. "Do you want to transfer private ownership of groundwater in Maine to the State?" is the way it began.

In the new Maine, it seems, Nestle gets to draft the wording of ballot questions it opposes. This, I thought, was going to be interesting.

Maine is full of water. It promotes its lakes, ponds, rivers and streams as a sportsman’s paradise; and our drinking water has been ranked number one in the nation. (Some 70% of people here tap directly into the aquifers through wells.) The water is so abundant that we have tended to take it for granted; but three decades ago some far-sighted officials in our state planning office urged action while there was still time. Someday, they warned, trucks or even pipelines might take out water as far away as Boston.

Then, in 1980, a local water company by the name of Poland Springs was bought up by Perrier, the French spring water company. Twelve years later, Nestle, the Swiss mega-corporation, bought Perrier; which meant that our water now was being pumped by the largest food and bottled water company in the world. Water was becoming the world’s "blue gold," as one corporate CEO put it; and Maine was, if not a Saudi Arabia, at least a Texas or Alaska.

Now there were calls for action from many quarters. "I think we will see growing pressures from outside for use of our water supplies," then-governor John McKernan warned in the late 1980s, in a remark typical at the time. "We must be ready to deal with those pressures." Added Walter Anderson, then the State Geologist : "I believe the state should get a piece of that action."

Anderson since has become a consultant to Nestle, and his shift in allegiance was all too typical. Nestle saw what was coming; and it responded by doing what a corporation does best — namely, spreading money around the state. Does your fire department need a new sign? Does your school district need money? Does your conservation or environmental group need help with land acquisition? How about books for the library, or a new cross-country ski trail?

Whatever the problem, Nestle was there. The Maine Nature Conservancy and the State have found Nestle especially generous with land acquisition money. Some conservation groups in the state actually are considering conservation easements that would permit bulk water extraction combined with a direct share of the revenue flow for the group.

In Vermont last year, the Vermont Natural Resource Council helped to enact a statewide moratorium on large water extraction. In Maine, environmental groups have been pretty much silent.

In the late 1980s, following the initial spasm of high-level concern, the legislature created three separate commissions to study the state’s water resources and recommend protective action. Each concluded that Maine needs a coordinated water management structure that provides centralized data collection and retrieval, adequate monitoring, a mechanism for dispute resolution, and a system of water allocation in the event of supply shortages. This would apply to all waters of the state, surface and subsurface.

The legislature didn’t act on any of the reports — a failure the courts have interpreted, justifiably or not, as an affirmation of the legal status quo.

That status quo is a disaster. Since colonial days, Maine courts have held that surface waters of ten acres or more ("Great Ponds") and tidal rivers fall under what is called the "public trust." This means that ultimate ownership resides in the people of the state; and that the government has a consequent duty to protect these for future generations. Groundwater, by contrast, has been relegated to the "absolute dominion" rule. If there is water under your land, you can pump all you want regardless of the impact upon anyone else.

The absolute dominion rule is a relic of an age of hand pumps, when courts did not understand that all the water under ground was connected — and connected to the surface waters as well. It is a total anachronism given the millions of gallons that Nestle is pumping from the state. (That’s between 500 million and a billion gallons annually under the Poland Springs label.) What the company touts as "the goodness of Maine" translates into some $700,000,000 in revenues each year.

Still, the Maine courts have said that their hands are tied; and the legislature has given them an excuse. When the legislature did not move on the recommendations of its own study commissions, the courts took that as a signal that things should remain as they are. Our neighbors in New Hampshire and Vermont have abolished absolute dominion, as have most of the other states. But Maine remains among the hold-outs, along with Texas, where it is called the "law of the biggest pump."

That is an apt description of the role of Nestle here — except that you could add "the biggest purse" as well. In 1987, for example, the legislature roused itself enough to enact a law that supposedly restricted the transporting of water in bulk quantities. The legislative findings declared that the transport of water for commercial purposes in large quantities away from its natural location "constitutes a substantial threat to the health, safety and welfare of persons who live in the vicinity of the water and rely on it for daily needs."

Accordingly, the law prohibited the transporting of more than ten gallons, "beyond the boundaries of the municipality or township in which water is naturally located or any bordering municipality or township," with exceptions for extraordinary hardships. It sounded as though the lawmakers finally meant business. But then, as if by magic, an exemption appeared. Maine’s biggest exporter of water — Poland Springs — was effectively "grandfathered" into this legislation that supposedly was aimed at curbing the export of water.

The deed was done quietly, through an "errors and omissions" bill — a legislative act that supposedly makes technical corrections to legislation already enacted. It had to be someone in leadership. Other members don’t have the authority or the access to do this.

Then, about ten years later, the rest of the law was gutted administratively. The bureaucracy (most certainly with instructions from above), ruled that it would be a "hardship" for Nestlé if it failed to achieve its market share targets. Thus began a parade of "hardship exemptions" — a dozen or so for Nestle alone. I’m not sure why it occurs to me in this context, but the Democratic State Committee recently reported a $20,000 contribution from Nestle.

I learned from a recent article in the New Yorker that the Chinese symbol for political order is based on that for water. "The meaning always has been clear," the writer observes. "Those who control water control people."

Maine today provides a case study. In one locality after another, the polity is bending to the wishes of our new water lord. In several towns, Nestle has managed to tap into the public water supply. Kingfield is one of these; the Kingfield Water District is building a new pipeline from the spring to a new Nestle bottling plant. A local newspaper there reported that the paid consultant to the Kingfield Water District also had a relationship with Nestle and may have revealed information to the corporation during negotiations. He recently resigned, but the deal is unaffected.

There’s more. The Kingfield board of selectmen called an executive session to discuss what appeared to be a large property tax break for Nestle. A local reporter contacted the state Attorney General, who called the town to warn that it was breaking the state’s right-to-know law. Similarly, the city council in Old Orchard Beach held a private session to discuss an "in perpetuity" contract for Nestle waste water. One council member and a local newspaper called the move "secret and illegal." That’s rapidly becoming a state slogan under our new water regime.

In yet another community, in Western Maine, Nestle is suing to get a green light for a proposed bulk water pumping station that would operate round the clock in a rural residential zone. People there are not thrilled about this idea; but guess who can pay more for lawyers?

People don’t like to be bullied like that. They also don’t like the idea that a giant corporation is making millions of dollars from a resource that belongs to them, not to the corporation. I doubt that many people here are surprised at the results of a recent Green Party poll that found that some two-thirds of Maine voters now support legislation to protect our groundwater, and a fee for the pumping of our water to sell someplace else.

(As unbelievable as it might seem, neither exists today.) Nestle doesn’t give us its bottled water for free. So why should we give Nestle our water for free, especially when it is using that water to make its executives and shareholders rich? That’s the premise of a new initiative measure that would give the people first right to the water, and would establish reasonable standards for pumping and use.

The measure also would create a Fresh Water Resource Board with a mandate to protect the water resource and the local environment dependant on it. The Board would be financed through a fee on bulk water extraction. The fee would pay also for the scientific studies necessary to protect the rights of all users of the water, present and future.

Even with public support this will not be an easy fight. Nestle has retained Frank Luntz, President Bush’s spinmeister. It has the state power structure wired several times over. On our side is the desire of people here to control their own water and to pass it along undiminished to their kids and grandkids. As I said, it is going to be interesting.

JIM WILFONG is director of H20 for Maine, a group of concerned citizens working to protect Maine’s aquifers. Its site is http://www.h2oforme.org.

 

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