Posted
February 14, 2006

Who Owns Maine's Water?

We need to ensure that Maine's water is clean, available and affordable for all -- and not endangered by large commercial bottlers.

In 2003, I accompanied a small business agricultural client on a trip down to East Texas to visit one of his suppliers. East Texas is the site of the largest oil discovery in the lower 48 states. Over nine billion barrels have been extracted from it. We had time to visit an oil museum in the town of Kilgore. Our tour guide told us that in 1932, East Texas crude oil sold for 10 cents a barrel, and water was selling for one dollar per barrel. Imagine, water was ten times more expensive than oil!

On our way back to Maine, my Aroostook County client and I discussed a few compelling facts: water was more expensive than wine, beer and milk; it takes 1000 tons of water to raise one ton of grain; and in the future, with a growing world population, fresh water will be in short supply. My client and I agreed that those who control fresh water would control life as we now know it. It became clear to me that we should regard Maine’s water as Maine’s oil. I needed to know more. I needed to know if the State of Maine, in its role as trustee for the citizens of Maine, was actually protecting Maine’s fresh water supply.

Water. Our lives depend on it. Yet, we in Maine always assumed our supply was more than abundant. Who could have predicted that in the 21st Century Maine’s groundwater would be exported far and wide? Are there safeguards in place that will protect our aquifers and ensure that we will have enough clean drinking water? Those safeguards do not now exist. They should and that is a goal worth working and fighting for.

Water giants are on the move in Maine, around the country, and around the world. The gold rush to own and control the world’s most essential resource is on; and the giants have had at least a decade’s head start. On a Sunday night a year and a half ago, at almost midnight, I received a mysterious phone call from a hydro geologist from the Southwest. He told me he had been reading about our water activism here in Maine and that he recently had traveled here. He was acting as a front for the water giants and was engaged to purchase forest land over aquifers in the great North Maine Woods. Secretly, they have been buying up our water while building local and statewide political alliances for protection.

Where were our watchdogs? Maine has been fortunate to have some wonderful environmental stewards. When I was a legislator serving on the Natural Resources Committee, these groups were ever vigilant. But with bulk water extraction, and the threat to Maine’s groundwater, they have been unusually quiet. I have some sympathy with their reticence on this issue. Nestle has done a great job selling itself as a green business. It has placed managers on the boards of environmental groups and has made large contributions to such groups. The water giants have supported land conservation, especially land located on or near great sources of water.

Given this sales job, it can be hard to see the big picture about the development and commoditization of Maine’s water and its effects on our way of life. It was easier to recognize your opponents 30 years ago. They were less sophisticated. But that doesn’t change the simple fact our watchdogs can’t seem to see: Nestle is not a guardian of our water. It is a taker of our water.

In states like Maine that still use the common law principle of “capture” to define the ownership of water, the water cartel has had an easy time of it. The law of capture allows a property owner to take any amount of water without regard to the effects on the aquifer or on neighboring land owners. When the common law was established there was no thought of bulk extraction. It has only begun to emerge as an issue in the last ten years. Today there are few if any checks on the amount of water that is taken, or where.

This raises a host of questions, in Maine as in numerous other states:

  1. Who will control the groundwater?
  2. Who will determine what is sustainable for all interested parties?
  3. Will Maine’s citizens, the common law owners of Maine’s groundwater, be compensated for their ownership rights and their substantial investment in clean water?
  4. What rights, if any, have been given away as a result of international trade agreements and their treatment of water as a “tradable good”?
  5. Should Maine be concerned with more than just the giant water bottlers, such as Nestle, owner of the Poland Spring brand?

I began by talking with dozens of people whom I have come to know and respect over the years: neighbors, business people, farmers, teachers, and politicians. They were Independents, Greens, Republicans and Democrats. Each and every one asked me to continue. They, too, were concerned. They understood what was at stake. Back then, I didn’t grasp the Pandora’s Box I was opening, full of political intrigue, threats, greed, and disappointment.

I pulled together several friends to help complete the research and draft a legislative proposal.

We started with the common law ownership of water by the citizens of Maine while it is in the ground. (The law of capture takes effect once the water is extracted.) This is related to the common ownership of the great ponds in Maine, which was codified under the Great Ponds Act over thirty years ago. Since then it has been supported and enforced by the Maine courts. We could not support the principle of capture however, since it no longer corresponds to hydrologic reality. In its place we would support a right of access within sustainable limits.

In the legislative proposal we contemplated, we would provide a definition of water sustainability that would take into consideration all of the long-term needs of the community. We would not allow Nestle or any other corporate entity to decide what was sustainable, since it is our water not theirs. We would follow the advice of President Reagan: “Trust, but verify.” I had been in business long enough to know what happens when pressures to increase market share drive a company.

Finally, we would use a severance tax to provide a return to Maine citizens for their investment in clean water. Then we would invest this money in a public trust fund, to pay to implement the legislation and for various water and land conservation projects. The balance would be invested in small businesses and small farms in Maine with the purpose of growing the fund’s value for the citizens of Maine.

Let’s talk about control of water for a minute. Most people have a vague notion that there are safeguards of some kind already in place. At the Federal level, the Food and Drug Administration has a definition of spring water, but there is no regulation regarding how much a corporation can take. At the State level, any company hauling water across town borders needs to obtain a bulk water transport permit for amounts in excess of 10,000 gallons a day. Those are granted routinely. Any wellhead serving the public is licensed by the Department of Health and Human Services under its Drinking Water Program. A few hundred dollars in permit fees, some paperwork, and ready to go.

Then, there are local ordinances. But let’s see how those work in practice.

The citizens of Fryeburg Maine are supplied by a small privately owned utility. This company also sells to Pure Mountain Springs, a private water company that in turn sells to Nestle. They have two pumps coming from the same spring source. In the middle of the winter two years ago, one of the pumps broke down. Guess who didn’t have water for two days and who was under an order to boil water for four more? If you guessed that that two nursing homes; the grade school, middle school and high school; and all of the households and small businesses in the village were hauling water with fire trucks and livestock trucks to keep the flushes going, you would be right.

Meanwhile, Nestlé’s trailer trucks rolled to their plant in Massachusetts 24/7 without interruption. That’s what’s coming if corporations continue to get control of our state’s water.

The severance tax proved to be a real magnet for dissent. Of course, the water giants hit us with their hollow assertions that they would be forced to close down operations. But opposition came as well from anti-free trade folks who think that water should not be a commodity. I expected complaints from the water cartel. They want to keep all the money whether they have a right to it or not. I was not prepared for the anti-trade folks.

I understand their position, that water is a human right and not a commodity. But the argument that taxing water makes it more of a commodity, is, I think, off base. A tax is simply a way for Maine citizens to recoup some of their public and private investments in clean water. In Maine, as in many other places, water already is extracted and sold, and I don’t think that will change.

The question now is control. In Maine, we are in the fight of our lives – for our water resource, our communities, and our Maine way of life. In my view we don’t have the time or resources to fight a losing battle over whether water will be bought and sold, because it already is.

In fact, Maine water is being bought and sold every day by the approximately 25 bottled water companies now operating in the state. At least one billion gallons of Maine water are extracted every year with double-digit annual increases. The water cartel is poised to take control, and this is something it will not give back.

As a former Maine legislator, my instinct was to try to shepherd a bill through the legislature. I knew, however, that Nestle had retained the state’s biggest law firm with many hired guns, mostly well-connected Democrats sprinkled with well-placed Republicans. So when we petitioned the legislature, we also announced a direct citizen referendum campaign in case the legislative approach fell short.

At first, we had real interest and energy in the State Senate, but it was short-lived. The Democratic Senators were excited. They thought a water bill with good sustainability language and a severance tax might be passed. The budget was in trouble. They needed the money. They sent a high level delegation down to talk to the Governor who promptly informed them that he would veto any legislation on this subject. The water lobby had gotten to him first. The people’s representatives arrived second.

I don’t know what went on behind closed doors in the governor’s office. I do know that with the revolving door between government and the private sector, it doesn’t leave the citizens of this state with much confidence that their interests are coming first. What conclusion do we draw when Nestle hires: the former Chair of the Land Use Regulation Commission; the regulator of land in the water rich North Maine Woods; the former State Geologist; the former Deputy Attorney General and Division Chief for the Natural Resources Division of the Maine Attorneys Generals Office; the lobbying division of a large law firm managed by the Governor’s brother; and several other prominent Democrats and Republicans to help smooth the way?

In the end, the Senators did not want to pass something that would not have the two-thirds majority for a veto override. They knew they didn’t have the votes. The direct citizen referendum campaign was on. H2O for ME was formed to organize that campaign.

Not many people realize how hard it is to organize a citizen’s referendum campaign with mostly volunteers. I thought I knew, and it turns out I didn’t have a clue. It’s hard – really hard. Organizing volunteers to collect fifty-five to sixty thousand signatures from registered voters and accounting for them is difficult. All of the signatures and the collectors of signatures must be certified by the towns and cities and finally by the Secretary of State [SOS]. There is little room for error. It took over six thousand petitions forms and about 500 volunteers to collect our fifty one thousand signatures. Getting them back with all of the documentation was a chore.

First, we wrote the legislation. I am lucky to have great friends who are also great lawyers and willing to help us pro bono. After the Secretary of State certified our measure, we moved to print the petitions. Nestle immediately sued the Secretary of State and then withdrew the suit one week later. I was told by an Augusta (the state capital) insider that if I didn’t withdraw the referendum I would have “a very ugly year.” The fun had started.

A few weeks later, at the State Chamber of Commerce annual dinner, the CEO of Nestle Waters North America’s lectured Mainers on their misuse of their own democracy. “I feel like the process has been hijacked,” he said. “ I don’t think (referendums) were intended for this activity.”

That was only the beginning. With less than a week until Election Day, the Secretary of State changed the longstanding rules governing signature collection at the polls. (Our measure would go on the next ballot not the current one.) Nestle “blockers” were permitted at polling places to hinder our right to ask for voter signatures. These “blockers” were Nestle employees. The SOS insisted that the ballot clerks place the “blockers” next to our collectors. It made it very tough to ask for a signature while a “blocker” or two were warning the voters not to sign or they could lose their jobs.

Our signature totals suffered. This rule change came about without a public hearing or a written opinion from the Attorney General and without notification by the Secretary of State to H2O for ME. Years of contributions by the water giants were paying dividends. Nestle later had this “blocker” concept introduced as legislation to make it permanent. The legislature wisely defeated it, although not without a fight. This is just a glimpse of what’s in store if the water cartel gains full control over the water plantation.

Meanwhile, Nestle threatened to close the Poland Spring plants in Maine and eliminate jobs. They would take their soccer ball and go back to Switzerland. At the same time they used their anti-tax spin. “Maine doesn’t need another tax. Maine needs more jobs.” What a joke. Are they kidding? Nestle and others have already received massive tax breaks, under the Municipal Tax Incremental Financing Program and the Business Equipment Property Tax Reimbursement program among others. These are property tax subsidies paid for by the rest of us in the State of Maine.

On Election Day 2004, H2O for ME volunteers gathered 33,000 of the 50,519 certified signatures required by the Maine Constitution. The remaining 20,000 signatures were tough to get. We didn’t have much grease for the skids. We ran the entire campaign on $30,000, plus the commitment of a team that was truly inspiring. We made it with the help of a former legislator suffering from cancer; a former WWII pilot who directed his signature gathering campaign from his hospital bed after suffering a stroke; and an Iwo Jima Marine suffering severe back pain, among many others.

We had a year to collect the necessary signatures, and we made it with just over 500 to spare. In the end, it was not enough. The opposition seized on every technicality – a missing date on the certification portion of the petition form, for example or signatures that appeared printed, Technicalities such as these disqualified enough signatures to keep us below the threshold. It was a sad day for all of us. However, we didn’t have time to sulk. Being a citizen in a democracy is not easy. We may not have won the battle, but there is still the war to be won. We got to work right away for round two.

Round two will be fought in a different way. We will again focus on the four central points: ownership, control, sustainability and citizen equity. At the same time, we will incorporate suggestions that have been offered over the past two years from a variety of quarters, including some in the water industry.

Under common law we citizens of Maine own the water. We never heard anyone dispute that. So let’s just codify that ownership. Next, let’s make the State the trustee for the water ownership rights of the citizens. This is implicit already, but let’s spell it out. If Mainers own the water in the ground, then why do we have to tax it to receive a return on our investment? Why not sell it, within sustainable limits, at market value in an open and competitive process?

This would address the Nestle complaint that a severance tax would decrease its ability to compete. Now it’s not a tax; it’s a market price for the resource in question. The funds generated would be placed in a public trust. Part would go to implement the act; part to protect water quality and supply; and another part would come back to Maine citizens as a dividend. The State, as trustee and steward of Maine’s water assets, could sell water for containerized resale on a sustainable basis only, and only after the traditional water users’ needs have been met.

Sustainability is the key. We will not drain the future for corporate profit. We define sustainability broadly, as having no negative impact on the aquifer and groundwater, wetlands, all surface water, rivers and streams, private wells, farmers and local economic development. In addition, small towns, where much of the water is located, would have a veto over water development that doesn’t fit their vision for their own community. Some small towns might find it annoying and dangerous to have 800 tanker trucks rumbling along their two-lane roads 24 hours a day, 7 days a week, and 365 days a year.

Water profits may seem like good business from the vantage point of boardrooms in Switzerland. And they might make great headlines for the Governor’s office in Augusta. But folks in rural towns such as Fryeburg or Kingfield might have different views.

As I write this, H2O for ME is drafting a new legislative proposal for submission to the Secretary of State. If this concept is enacted, no changes to the legislation would be allowed without a majority vote of the voters at referendum.

We begin our petition process all over again. Geographically, Maine is a far-flung state with 1.3 million hardy souls. It is not easy to reach our fellow citizens. But, we will. The struggle over control of Maine’s groundwater is critical to all of us. We were given a great privilege by our great grandparent’s generation — a referendum process that we can use when the powers on high refuse to act. Many in the world are not so lucky. This struggle is for them as well as for us.

Nothing is easy when it comes to taking on the world’s water cartel but we take comfort in the words of Archimedes more than 1,000 years ago: “Give me a place to stand, and I can move the world.” In Maine, we have a place to stand. As self reliant Mainers, we intend to move the world.

Jim Wilfong, a former Maine state legislator, is leading the H20 for ME campaign. To learn more, visit the group’s website. Donations can be send to H20 for ME, PO Box 52, Fryeburg, ME 04037.