Sustainable Water Use Rulemaking
Recent History
Provisionally adopted rule
Chapter 587 was provisionally adopted by the Board of Environmental Protection (BEP) on November 16, 2006.
In its provisional adoption of the rule, the BEP directed the DEP to make the following changes:
- Add language at the end of the first paragraph in section 1(D): “The intent of the certificate process shall be to move towards achievement of water quality standards.”
- Delete “and approved” from the second paragraph of section 1(D).
- Add a sentence at the end of paragraph 7(A) indicating that DEP would be providing assistance.
- Amend paragraph 8(B) to read:
B. Hydropower projects. Flows and water levels for hydropower projects as defined in 38 M.R.S.A. § 623(3) shall be established through the Water Quality Certification process pursuant to Section 401 of the Clean Water Act, 33 U.S.C. §1341, or a permit issued pursuant to the Maine Waterway Development and Conservation Act, 38 M.R.S.A. § 630 et. seq., and therefore shall not be subject to or established through this Chapter, notwithstanding any other provision in this Chapter.
As a major substantive rule, Chapter 587 will be presented to the Legislature for review this winter (2006-2007). After legislative review the rule would then go back to the BEP for final approval. Major substantive rules usually become effective 30 days after final filing with the Secretary of State's Office.
The Public Utilities Commission (PUC) has undertaken an inquiry into the potential fiscal impact of the rule on water utilities and ratepayers. This inquiry is planned to be completed in time to be presented to the legislature when it takes up the review of the provisionally adopted rules. The PUC inquiry may be tracked through the PUC website's "Home Search" page by entering 2006481 in the "Case ID" field and clicking the "SEARCH" button.
Statutory Mandate
These rules are being proposed in response to the statutory requirements of Title 38, sections 470-E and 470-H. These sections provide that the rules must "establish water use standards for maintaining in-stream flows and GPA lake or pond water levels that are protective of aquatic life and other uses and that establish criteria for designating watersheds most at risk from cumulative water use. Standards adopted ... must be based on the natural variation of flows and water levels, allowing variances if use will still be protective of water quality within that classification."
This mandate has been modified by two pieces of legislation passed in the current legislative session, addressing agricultural water use and public water supplies. PL Chapter 559 (off-site) creates an agricultural water management board and gives agricultural water users five years to achieve compliance with the rules. Resolve Chapter 190, directs the Department to work with stakeholders to “reconcile, to the extent feasible, the objectives of protecting aquatic life and other uses as provided in Title 38, section 470-H and the objective of allowing community public water systems to use their existing water supplies to provide water service.”
Materials for request of provisional adoption
Posting to public comment (beginning of formal rulemaking)
The deadline for comments was August 18, 2006 at 5:00 p.m.
Materials:
Comment prior to the beginning of formal rulemaking
Recognizing the complexity of this issue and the many interested parties across the state, a draft was released in March, 2005 for public comment before the beginning of formal rulemaking. The Department received many valuable comments on the pre-rulemaking draft from a broad range of interested parties. Comments were received from environmental groups, commercial, industrial and agricultural water users, public water suppliers, and state and federal agencies with an interest in water use issues.
