[HISTORY: Adopted by the Annual Town Meeting
of the Town of Shapleigh as indicated in article histories. Amendments
noted where applicable.]
[Adopted 3-14-2009 by Art. II]
This article shall be known and cited as the
"Large-Scale Groundwater Extraction Ordinance of the Town of Shapleigh,
Maine."
The intent and purposes of this article are
as follows:
A.
To protect the short-term and long-term quality and
quantity of groundwater, spring water and freshwater resources within
aquifers and the recharge areas for these water bodies and related
surface waters, including, but not limited to, lakes, ponds, wetlands,
rivers and streams as may be located wholly or partially within the
Town of Shapleigh;
B.
To ensure that any proposed large-scale water extraction
activities are subject to appropriate review and approval by the Town
of Shapleigh and the State of Maine;
C.
To establish a regulatory framework for the oversight
and management of groundwater resources and groundwater extraction
activities and to develop management practices governing groundwater
extraction activities which will ensure the ongoing sustainability
and quality and avoid interruption of supply or degradation in the
quality of groundwater resources within the Town of Shapleigh;
D.
To protect the general health, safety and well-being
of all persons dependent upon aquifers and groundwater resources located
in the Town of Shapleigh;
E.
To ensure that groundwater extraction activities do
not adversely impact or impair plant or wildlife communities or the
viability of wetlands, meadow areas or forested areas dependent on
groundwater resources;
F.
To ensure the ongoing stability and to safeguard the
environmental health of surface land proximate to and within groundwater
extraction areas and to conserve topsoil and to promote conditions
safeguarding agricultural and silvicultural activities as may be dependent
on water resources;
G.
To protect private and public property proximate to
and within groundwater extraction areas by regulating the structures,
facilities, uses and activities associated with groundwater extraction
so that there is no undue adverse impact to new and existing roadways
due to extraction, processing, loading or transport of water resources;
H.
To minimize, limit and require mitigation and buffering
of noise, vibration, dust, other adverse effects or pollution associated
with groundwater extraction activities, including regulation of equipment
and vehicles used in groundwater extraction, processing, loading or
transport of groundwater resources; and
I.
To provide policies promoting fair use of and equitable
access to groundwater resources and supplies.
This article is adopted and enacted pursuant
to the following authority:
In this article, the words and phrases listed
below have the following meanings unless a contrary meaning is required
by the context or is specifically prescribed. Terms related to groundwater
extraction that are not listed below shall be defined in accordance
to the following order: as defined by State of Maine Statutes; in
accordance with their generally accepted technical meaning within
the applicable scientific disciplines; and their common dictionary
definition.
An underground body of water and earth, sand, gravel, or
rock that contains sufficient saturated permeable geologic material
to hold, conduct and yield significant quantities of groundwater to
wells and springs. The term "aquifer" as used in this article includes
all areas specifically mapped or identified on the current maps issued
by the Maine Geological Survey as the colored map series identified
as Significant Sand and Gravel Aquifer Maps.
A period of abnormally dry weather that is sufficiently prolonged
to cause serious hydrologic imbalance in the affected area. It is
possible to index the severity of a drought by an impact grading system.
One such system, the Palmer Index, uses a zero for normal conditions,
a plus scale of 1 to 4 to measure or index the degrees of wetness
of a region, and a minus scale of -1 to -4 to index the degree of
dryness of a region. In the fall of 2008, the State of Maine is 14
inches above normal in the year-to-date precipitation. The Palmer
Drought Index for Maine in the Fall of 2008 is + 4 (extremely moist).
The physical location where groundwater is extracted from
the ground by the use or development of springs, wells, pumps, piping
apparatus, catchments, weirs or other extractive devices, methods
or technologies.
Underground water resources located at or below the water
table and within the pore space of unconsolidated sediments or in
fractures in bedrock.
Extraction of 5,000 or more gallons of groundwater from a
single or multiple extraction points located within the Town of Shapleigh
within any twenty-four-hour period by any individual, business association
or entity, consortium or association of related individuals or related
business entities.
Lakes, ponds, rivers, streams, wetlands, and similar surficial
water bodies.
The withdrawal, removal, diversion, taking or collection
of groundwater by any means from aquifers, springs, wells or other
groundwater resources through the use of wells, pumps, piping apparatus,
catchments, weirs or other extractive devices, methods or technologies.
The area of land in which all precipitation (rainfall, snow
melt, etc.) drains towards a single location or area and water body
or watercourse. Ridges of higher ground generally form the boundaries
between watersheds. At the linear boundaries of a drainage basin,
precipitation falling on one side flows towards the low point of one
drainage basin while precipitation falling on the other side of the
boundary flows towards the single location or area and water body
or watercourse of the adjacent drainage basin.
The level of the surface of groundwater or the water saturated
zone within the underground substrate. The location of a water table
is revealed by the level at which water stands in a well open along
its length and which penetrates into adjacent groundwater resources.
The area of an aquifer that is capable of contributing groundwater
to a well or other extraction point under the most severe pumping
and limited recharge conditions that can be realistically anticipated,
(i.e., 180 days of pumping at the maximum approved yield rate with
no recharge of the groundwater resources from precipitation). A zone
of contribution is bounded by groundwater divides which are evidenced
by the pumping of the well and/or by the contact zones of supplying
aquifers with adjacent low-permeable geologic materials such as glacial
till or bedrock. Depending on local geologic and hydrologic conditions,
surface water bodies, such as rivers, streams, wetlands, ponds or
lakes, may act as recharge boundaries and define a zone of contribution.
In all cases, a zone of contribution will extend upgradient within
the related aquifer areas to the point of intersection of the aquifer
with prevailing site-specific hydrogeologic boundaries such as a groundwater
divide, a contact zone with low-permeable geologic materials, such
as glacial till or bedrock, or a recharge boundary which may be demarcated
by a surface water body.
The area surrounding a pumping well within which there are
or will be physical changes in the water table due to groundwater
relocation, extraction or withdrawal or the interruption of groundwater
recharge conditions.
A.
General. The following provisions are intended to
ensure the ongoing sustainability and quality of water supplies and
the avoidance of any interruption or degradation of water quality
and quantity in groundwater resources to members of the general public
within the Town of Shapleigh, and to protect the health, safety and
well-being of all persons dependent upon aquifers and groundwater
resources located in the Town of Shapleigh.
B.
Permit required. Any person seeking to develop or
engage in large-scale water extraction activities must first apply
for and obtain a conditional use permit issued by the Planning Board
of the Town of Shapleigh.
C.
Water extraction activities not requiring a permit.
The following water extraction activities and uses do not require
a conditional use permit:
(1)
Water extraction for use in agricultural activities
and use on farmlands, agricultural or on silvicultural lands for such
purposes in the immediate vicinity of an extraction point developed
for such activities and use;
(2)
Water extraction for use as drinking and domestic
water by private residences located within the Town of Shapleigh;
(3)
Water extraction for use by public facilities, such
as schools, wastewater treatment facilities, public water utilities,
public athletic fields or similar facilities or uses located within
the Town of Shapleigh;
(4)
Water extraction used to support public safety or
fire suppression; or
(5)
Existing water extraction used to support ongoing
residential, commercial and industrial activities within the Town
of Shapleigh to the limit of the historic level of water use existing
as of the date of the adoption of this article.
D.
Application for permit.
(1)
Applications for conditional use permits shall be subject to the provisions set forth in the Town of Shapleigh Zoning Ordinances. Chapter 105, and the following additional application and performance standards. Application forms and instructions for completion of a conditional use permit are available in the Shapleigh Town office.
(2)
Additional application and performance standards.
(a)
Written application required. Applications for
a permit from the Planning Board to conduct large-scale groundwater
extraction activities shall be in writing and accompanied by detailed
site plans and project descriptions prepared by a qualified and licensed
State of Maine geologist, hydrogeologist or engineer.
(b)
Right, title and interest. Applicants must submit
with an application adequate evidence of the applicant's right, title
and interest in and to the property or properties on which any water
extraction activity is proposed. Applicants may show sufficient right,
title and interest by providing a copy of a deed duly recorded in
the York County Registry of Deeds or a copy of the lease, option,
contract or other instrument establishing their right, title and interest.
In all cases, such instruments must be provided in their entirety
and must be submitted with the application. References to purchase
price and specific business sensitive financing terms may be redacted
from the documentation provided.
(c)
Extraction methods and quantity. Applications
shall include a detailed statement describing the extraction methods
proposed and the total maximum quantity of water to be extracted within
any twenty-four-hour period from the aggregate of all extraction points
as operated by and proposed to be operated by the same individual/entity,
or consortium/association of individuals or entities. The description
and submissions shall include a detailed summary and maps describing
and showing the locations of all existing and proposed points of extraction
and the proposed and existing methods of extraction, the depth of
the extraction methods and a summary description of the characteristics
and type of aquifer resource.
(d)
Water use. Applications shall include detailed
description of the proposed uses for which the water is to be extracted,
including a description of the facilities for the use, processing,
transport, storage, bottling, sales or other similar activities associated
with the proposed water extraction activity.
(e)
Water transport. Applications shall include
a description detailing the means of transportation, transportation
vehicles and the proposed number of daily trips of the water transportation
vehicles on specific routes within Shapleigh to and from the extraction
site and/or water pipeline terminus from which water transport vehicles
will be loaded, transferred or discharged. The Planning Board may
require a traffic study to be completed by a qualified, registered
traffic or transportation engineer, retained by the Town of Shapleigh,
and paid for by the applicant.
(f)
Related applications and documents. Applications
shall include copies of all related applications, exhibits and reports
for such extraction project filed with any other municipal authority
or any agency or department of the State of Maine or United States
government, including, but not limited to, as required under 22 M.R.S.A.
§ 2660 et seq. (transport of water for commercial purposes)
or under applicable Maine Department of Health and Human Services
rules and regulations. Related applications and documents filed after
the date of the application but before any permit is issued by the
Planning Board shall be submitted to the Board within 10 days of filing
such related applications and documents.
(g)
Hydrogeologic investigation. Applications shall
include a written report addressed to the Shapleigh Planning Board,
procured by and paid for by the applicant, of a hydrogeological investigation.
The investigation report must be prepared, signed and sealed by a
Maine certified hydrogeologist, geologist or engineer. The report
shall be based on a hydrogeological investigation of sufficient detail
to provide, but not be limited to, the following information:
[1]
Watershed map: a topographic map of the proposed
entire watershed, both upgradient and downgradient of the proposed
water extraction point(s). Topographic contours shall be shown on
the map at intervals of 20 feet or less.
[2]
Aquifer maps: two maps of the aquifer showing
the location of the spring(s), well(s), or excavation(s) from which
water is currently extracted and proposed to be extracted and all
wetlands and surface water bodies located within 2,000 feet of the
extraction point(s). The applicant shall undertake all reasonable
measures to obtain data for the aquifer maps from land not owned,
leased, or to be leased by the applicant, but the applicant is not
required to include such data from land areas whose owners do not
allow access. The maps shall be at a scale of 100 feet or less to
an inch and include topographic contours at an interval of 20 feet
or less. The two maps shall show the following information respectively:
[a]
Map 1: water table contours and their range
under ambient conditions as determined over at least a two-year period
prior to any water extraction;
[b]
Map 2: water table contours under actual pumping
conditions at completion of a five-day constant rate pumping test
at a rate at or above that proposed for operation;
[c]
The maps shall be based on water table elevation
measurements from monitoring wells and surface water bodies in the
vicinity of the extraction site(s), and must include surface water
elevations for more distant locations;
[d]
Graphs and charts of precipitation and flow
of water in related springs, streams, brooks, or rivers and water
table elevation over the two-year period prior to any water extraction
shall be provided as well as an explanation of the significance of
the data; and
[e]
Graphs and charts of precipitation and flow
of water in related springs, streams, brooks, or rivers, and water
table elevations shall also be provided for the period of the pumping
test and 10 days afterward.
[3]
Geologic cross sections: at least two geologic cross sections showing geologic structure and stratigraphy, groundwater and surface water elevations for two aquifer maps required in Subsection D(2)(g)[2] above. The locations of these cross sections shall be indicated on the aquifer maps.
[4]
Zones of contribution and zones of influence:
a map showing and narrative describing the long-term zone of contribution
and zone of influence of each extraction point(s) based on maximum
proposed extraction rates, and a quantitative water budget analysis
that includes analysis of precipitation inputs, evaporation losses,
surface water runoff, infiltration rates of precipitation into groundwater,
analysis of discharge-recharge relationships between surface water
and groundwater and the relationship of such factors to the soil types
in the drainage basin. Such maps shall also provide identification
of owned and leased land areas and indicate the current owner's or
lessee's name.
[5]
Aquifer characteristics: a narrative explaining
the ability and capacity of the aquifer or other groundwater resource
to provide the quantity of water desired to be extracted by the applicant
based on the geologic conditions and relevant properties of the site
and hydrogeologic conditions (e.g., hydraulic conductivity and transmissivity).
Such explanation shall address, but not be limited to, the following
issues:
[a]
Rates of groundwater drawdown and recharge;
[b]
Sustainable groundwater extraction rates;
[c]
Details regarding the location of aquifer boundaries;
[d]
Details regarding the location of recharge areas;
[e]
A review of possible changes in the zone of
contribution and zone of influence over time and predicted impacts
on the groundwater resources impacted; and
[f]
Prediction of the effects of long-term water
extraction on the water table and the impacts on any and all nearby
water bodies, including, but not limited to, springs, lakes, ponds,
rivers, streams, wetland areas, Town wells, and private wells or other
existing extraction locations within the zone of contribution.
[6]
Chemical/biological characteristics: a narrative
explaining the chemical and biological characteristics of the aquifer
or other groundwater resource and a baseline chemical analysis or
fingerprint of the water resource characteristics, studied for one
year on a monthly basis.
[7]
Water quality issues: a narrative analyzing
the possible effects or impacts on the aquifer or other groundwater
resources from disturbances of existing water extraction activities
causing potential groundwater chemistry or elements and/or minerals,
such as, but not limited to, iron, manganese, arsenic, or uranium,
and reviewing any health hazards or water quality issues raised by
such disturbances or other impacts as measured or otherwise ascertained
of the specific conductance, turbidity, clarity, odor or taste associated
with current groundwater conditions.
[8]
Site plan. A detailed site plan depicting the
following:
[a]
Site dimensions: the limits (outside perimeter)
of the aquifer or other water source cited in the application, and
the bounds of the land of the applicant.
[b]
Nearby water bodies: the location of all water
bodies within 500 feet of the outside perimeter of the aquifer or
other water resource.
[c]
Existing road network: the existing network
of public or private roads leading to or by the extraction point(s).
[d]
Proposed new roads: any proposed new roads or
driveways to be constructed for access to and egress from the extraction
point(s), and the point(s) of intersection of such proposed roads
or driveways with existing roads.
[e]
Utility lines: any existing or proposed utility
lines proposed for use in the groundwater extraction activities.
[f]
Monitoring and test wells: the location and
type proposed or required of monitoring and test wells.
[g]
Extraction points: the location of all existing
and proposed extraction point(s), including, without limitation, all
associated existing and proposed well heads, pumping facilities, monitoring
or test wells, buildings, and/or sheds, utility lines, fencing, access
roads or driveways, with related elevation, and contour line information.
[h]
Water pipeline: the location of all existing
and proposed pipes, pipelines, aqueducts or similar that are intended
to facilitate transport of extracted water from extraction point(s)
to all intended end users.
[i]
Other information related to the review of groundwater
extraction activities: all other relevant and material information
bearing on the proposed large-scale water extraction activities, the
omission of which would tend to hinder the ability of the reviewing
authority, affected land owners or the public from developing a full
understanding of the scope and impact of the proposal, or as may be
required by the Planning Board.
[j]
Other required information: all other information
the Shapleigh Zoning Ordinance requires with a conditional use permit
application.
E.
Traffic impact analysis (if required by Planning Board):
a traffic impact analysis prepared, signed and sealed by a State of
Maine certified engineer with experience in traffic engineering. The
analysis shall include the following:
(1)
Routes to be used;
(2)
Access conditions at site;
(3)
Types and weights of water transport vehicles expected;
(4)
The expected daily water transport vehicle trips;
(5)
Peak-hour volumes;
(6)
Pre- and post-directional distribution of hourly and
daily traffic volumes and level of service for the affected roads/streets
and intersections;
(7)
Assessment of the load capability and volume capacity
of the roads/streets to be used;
(8)
Effect upon the level of service of the roads/streets
giving access to the site and the neighboring streets that may be
affected; and
(9)
Recommended improvements to assure an adequate level
of service on the affected streets and to mitigate the physical degradation
of roads sooner than the anticipated life span.
F.
Conditions of permit. No application for large-scale
water extraction activities shall be issued until and unless the Planning
Board affirmatively finds that each of the following performance standards
has been or will be met and that all other Shapleigh Zoning Ordinance
requirements are met. The burden of proof is solely on the applicant.
(1)
Technical expertise and financial capability. The
applicant must demonstrate to the reviewing authority that it possesses
the technical expertise and financial resources to provide continuing
adherence and capacity to meet these performance standards.
(2)
Sustainability of aquifer characteristics. The quantity
of groundwater proposed to be extracted will not cause undue adverse
impact to the groundwater flow patterns relating to the aquifer or
its recharge areas, related springs or other groundwater resources
within the Town of Shapleigh.
(3)
Sustainability of aquifer production. The quantity
of groundwater proposed to be extracted will not adversely affect
the long-term sustainability of the aquifer, groundwater resource
recharge areas, or other groundwater resources, during periods of
drought or due to reasonably anticipated changes in the recharge capacity
of the affected groundwater resources.
(4)
Sustainability of surface water characteristics. The
quantity of groundwater to be extracted will not adversely impact,
significantly diminish, or alter the characteristics of any surface
waters within the Town of Shapleigh, including during periods of drought.
(5)
Land subsidence. The quantity of water to be extracted
will not cause any ground subsidence on the parcel on which groundwater
extraction is taking place or in the vicinity of the parcel on which
groundwater extraction activities are proposed.
(6)
Sustainability of water quality. The proposed extraction
will not create a health risk or create adverse impacts, such as drinking
water turbidity, reduced clarity, or new odors within existing groundwater
resources from the disturbance of existing geologic materials within
the aquifer, or from any other cause related to the proposed groundwater
extraction activity.
(7)
Monitoring system and schedule. The applicant must,
in conjunction with the Town, establish an ongoing monitoring system
which documents extraction and recharge data and water quality characteristics
within the zone of contribution. The data is to be reported in writing
to the Shapleigh Board of Selectmen on at least a monthly basis. If
an aquifer location allows, at least 25% of monitoring locations shall
be at private wells located within the zone of contribution, provided
the applicant is able to obtain landowner permission for such testing.
In the event there are not enough private wells to attain the twenty-five-percent
threshold of wells to be monitored, the Planning Board may request
the applicant to provide additional monitoring stations on adjacent
public or state lands under which the aquifer or groundwater resource
is located. The information to be gathered at each testing/monitoring
well on water quality parameters shall include, at minimum, the following
data:
(a)
Water level;
(b)
Turbidity;
(c)
Temperature;
(d)
pH;
(e)
Conductivity;
(f)
Alkalinity;
(g)
Dissolved oxygen;
(h)
Aroma;
(i)
Total coliform;
(j)
Chlorophyll-a;
(k)
Total organic carbon;
(l)
Volatile organic compounds (VOCs);
(m)
Phosphorus;
(n)
Sodium;
(o)
Calcium;
(p)
Arsenic;
(q)
Iron;
(r)
Manganese;
(s)
Sulfur;
(t)
Lead;
(u)
Copper; and
(v)
Other parameters deemed appropriate by the Planning
Board.
(8)
Sustainability of preexisting domestic use of groundwater.
The applicant assumes and shall be individually responsible for any
and all liability for the loss, interruption, degradation or interference
with the preexisting use or beneficial domestic use of groundwater
enjoyed by any person caused by the applicant's participation in large-scale
water extraction activities. For the purposes of this section "beneficial
domestic use," "groundwater" and "preexisting use" shall be as defined
by 38 M.R.S.A. § 404, Paragraph 1A through 1C and liability
of applicant shall be for compensatory damages in accordance with
38 M.R.S.A. § 404.
(10)
Road use restrictions. Additional vehicular demand
on existing Town roads or public easements occasioned by the operation
of the extraction facility(ies) will not exceed the capacity of those
roads, or cause the premature failure, aging or diminished utility
of those roads as determined by the Town Road Commissioner, and/or
State of Maine Department of Transportation.
(11)
Pipeline use. If extraction facility(ies) will be
served by pipes, pipelines, aqueducts or similar devices, such installations
will be sited and constructed in a manner which shall not unduly interrupt
the public use of any existing roadway, the public's access to any
public facility, great pond, and access to private property; or pose
the risk of damage to any property along or through which installation
traverses as a result of any failure or malfunction which might cause
ponding, erosion, run-off, or similar conditions.
(12)
Habitat preservation: the applicant has complied with
the requirements of 38 M.R.S.A. § 480-D, Paragraph 3, Harm
to habitats and fisheries.
G.
Independent expert assistance. If the Planning Board
reasonably determines it requires independent expert assistance to
assist in its review of the application, or in evaluating the substance
of the application or in developing appropriate conditions of approval,
it may engage the service of a technical expert to assist the Board.
The applicant shall pay to the Town, in advance of the scheduling
of any public hearing, a sum equal to the estimated cost of the independent
expert. The failure to make payment shall excuse the reviewing authority
from scheduling any further review of the application by the Planning
Board until such payment is made in full.
H.
Surety and terms of permit.
(1)
Surety. No permit shall be issued without a surety
bond or an equivalent and appropriate security, including anticipated
inflation, as determined by the Planning Board in consultation with
the Town Attorney to secure performance of the activities permitted
to an applicant seeking to engage in groundwater extraction activities
and to ensure compliance with such conditions as the Planning Board
may impose in connection with such authority. The bond or surety shall
be in an amount recommended by the Board of Selectmen and approved
by the Planning Board.
(2)
Time limit and extensions of permits. Permits shall
be issued for a period not to exceed three years, but may be renewed
subject to the same criteria contained herein.
(a)
With respect to an application for a permit renewal, after notice and hearing as referred to in § 105-73D of the Shapleigh Zoning Ordinance, a renewal permit for another three-year period shall be issued, provided:
[1]
There is no increase in the permit holder's
extraction activities in terms of the quantity of water to be extracted;
and
[2]
There is no change in the location or configuration
of the extraction facility; and
[3]
There has been no material failure by the permit
holder to comply with any conditions of the expiring permit; and
[4]
There has been no material failure by the permit
holder to meet the performance standards applicable to the expiring
permit; and
[5]
There is no significant, credible evidence that
the permit holder's continuing operations would be unable to meet
the performance standards of the ordinance during any renewal period.
(b)
Any application for a renewal permit must be
filed with the reviewing authority not less than 90 days prior to
the expiration of the existing permit.
(3)
Discontinuance of permit. The permit holder is required
to inform the Town of Shapleigh if and when extraction points are
going to be nonfunctional for extended periods of time. If an existing
or permitted large-scale water extraction activity is discontinued
for more than one year, such activity shall require application for
a new or amended permit. Existing water extraction activities in operation
before the date this article is adopted may continue such operations
for three years from such date. At the expiration of the three-year
period, any such water extraction activities shall require the water
extractor(s) to file for and receive a permit according to the application
procedures, terms and performance standards of this article. In addition,
after notice and hearing, the conditional use permit for large-scale
water extraction activities may be discontinued by the Planning Board
in consultation with the Town Attorney during the three-year term
of the permit for significant violations and/or variations of the
conditions of permit described in this document.
(4)
Independent monitoring. The applicant shall pay the
Town of Shapleigh for on-going independent monitoring of extraction
operations.
This article shall become effective immediately
upon its adoption and enactment by vote of the legislative body of
the Town of Shapleigh at a duly called Town Meeting.
[Adopted 2-28-2009 STM]
The name of this article shall be the "Shapleigh Water Rights
and Local Self-Government Ordinance."
A.
We the People of the Town of Shapleigh declare that water is essential
for life, liberty, and the pursuit of happiness, both for people and
for the ecological systems, which give life to all species.
B.
We the People of the Town of Shapleigh declare that we have the duty
to safeguard the water both on and beneath the Earth's surface,
and in the process, safeguard the rights of people within the community
of Shapleigh, and the rights of the ecosystems of which Shapleigh
is a part.
C.
We the People of Shapleigh declare that all of our water is held
in the public trust as a common resource to be used for the benefit
of Shapleigh residents and of the natural ecosystems of which they
are a part. We believe that the corporatization of water supplies
in this community, placing the control of water in the hands of a
corporate few, rather than the community, would constitute tyranny
and usurpation; and that we are therefore duty bound, under the Maine
Constitution, to oppose such tyranny and usurpation. That same duty
requires us to recognize that two centuries' worth of governmental
conferral of constitutional powers upon corporations has deprived
people of the authority to govern their own communities, and requires
us to take affirmative steps to remedy that usurpation of governing
power.
This article is adopted and enacted pursuant to the inherent,
unalienable, and fundamental right of the citizens of the Town of
Shapleigh to self-government and under the authority recognized as
belonging to the people of the Town by all relevant state and federal
laws, including, but not limited to the following:
A.
Article 1, § 2, of the Maine Constitution, which declares
that "all power is inherent in the people; all free governments are
founded in their authority and instituted for their benefit, [and
that] they have therefore an unalienable and indefeasible right to
institute government and to alter, reform, or totally change the same,
when their safety and happiness require it."
B.
Section 3001 of Title 30-A of the Maine Revised Statutes, which grants
municipalities all powers necessary to protect the health, safety,
and welfare of the residents of the Town of Shapleigh.
C.
The Declaration of Independence, which declares that governments
are instituted to secure people's rights, and that government
derives its just powers from the consent of the governed.
D.
The General Comment of the United Nations Covenant on Economic, Social,
and Cultural Rights, which declares that "the human right to drinking
water is fundamental to life and health. Sufficient and safe drinking
water is a precondition to the realization of human rights."
No corporation shall engage in water withdrawals in the Town
of Shapleigh. The term "corporation" means any corporation organized
under the laws of any state of the United States or any country, or
any limited partnership, limited-liability partnership, business trust,
or limited-liability company organized under the laws of any state
of the United States or any country. The term "engage" shall include,
but not be limited to, the physical extraction of water, and the buying
and/or selling of water extracted within the Town of Shapleigh.
No corporation doing business within the Town of Shapleigh shall
be recognized as a "person" under the United States or Maine Constitutions,
or laws of the United States or Maine, nor shall the corporation be
afforded the protections of the Contracts Clause or Commerce Clause
of the United States Constitution, or similar provisions found within
the Maine Constitution, within the Town of Shapleigh.
All residents of the Town of Shapleigh possess a fundamental
and unalienable right to access, use, consume, and preserve water
drawn from the sustainable natural water cycles that provide water
necessary to sustain life within the Town. Natural communities and
ecosystems possess unalienable and fundamental rights to exist, flourish,
and naturally evolve within the Town of Shapleigh. Ecosystems shall
include, but not be limited to, wetlands, streams, rivers, aquifers,
and other water systems.
The people of the Town of Shapleigh hereby allow the following exceptions to the statement of law contained within § 99-10 of this article:
A.
Municipal authorities established under the laws of the State of
Maine engaged in water withdrawals providing water only to residential
and commercial users within the Town of Shapleigh.
B.
Nonprofit educational and charitable corporations organized under
state nonprofit corporation law, qualified under § 501(c)(3)
of the federal Tax Code, which do not sell water withdrawn within
the Town of Shapleigh outside of the Town of Shapleigh.
C.
Utility corporations operating under valid and express contractual
provisions in agreements entered into between the Town of Shapleigh
and those utility corporations, for the provision of service within
the Town of Shapleigh.
D.
Corporations operating under valid and express contractual provisions
in agreements entered into between persons in the Town of Shapleigh
and those corporations, when the withdrawn water is used solely for
on-site residential, household, agricultural, or commercial use within
the Town of Shapleigh, provided that such commercial use does not
involve the withdrawal of water for sale outside of the Town of Shapleigh,
or involve the purchase of water withdrawn from the Town of Shapleigh
for sale outside of the Town.
Any corporation planning to engage in water withdrawals within the Town of Shapleigh must notify the Town of such activity at least 60 days prior to engaging in water withdrawals. Such notification shall contain a claim to one of the exemptions listed in § 99-13 of this article. Any violation of this article shall be considered a criminal summary offense, and will subject the directors of the noncompliant corporation to joint and several liability with the corporation itself. The Board of Selectmen of the Town of Shapleigh authorizes the maximum allowable monetary fine under the Maine Revised Statutes for the violation of this article. Each act of water withdrawal and each day that water is withdrawn shall be considered a separate violation of this article. The Board of Selectmen of the Town of Shapleigh may also file an action in equity in any court of competent jurisdiction to abate any violation defined in § 99-10 of this article. If the Selectmen of the Town of Shapleigh fail to bring an action to enforce this article, or fail to diligently pursue ongoing litigation aimed at the enforcement of this article, any resident of the Town has standing in front of the court for enforcement.
Any person acting under the authority of a permit issued by
the Department of Environmental Protection, any corporation operating
under a state charter or certificate of authority to do business,
or any director, officer, owner, or manager of a corporation operating
under a state charter or certificate of authority to do business,
who deprives any Town resident, natural community, or ecosystem of
any rights, privileges, or immunities secured by this article, the
Maine Constitution, the United States Constitution, or other laws,
shall be liable to the party injured and shall be responsible for
payment of compensatory and punitive damages and all costs of litigation
to satisfy that liability, including, without limitation, expert and
attorney's fees. Compensatory and punitive damages paid to remedy
the violation of the rights of natural communities and ecosystems
shall be paid to the Town of Shapleigh for restoration of those natural
communities and ecosystems.
It shall be unlawful for any corporation or its directors, officers,
owners, or managers to interfere with the rights of natural communities
and ecosystems to exist and flourish, or to cause damage to those
natural communities and ecosystems. The Town of Shapleigh, along with
any resident of the Town, shall have standing to seek declaratory,
injunctive, compensatory, and punitive relief for damages caused to
natural communities and ecosystems within the Town, regardless of
the relation of those natural communities and ecosystems to Town residents
or the Town itself. Town residents, natural communities, and ecosystems
shall be considered to be "persons" for purposes of the enforcement
of the civil rights of those residents, natural communities, and ecosystems.
Any Town resident shall have standing and authority to bring
an action under this article's civil rights provisions, or under
state and federal civil rights laws, for violations of the rights
of natural communities, ecosystems, and Town residents, as recognized
by this article.
The foundation for the making and adoption of this article is
the people's fundamental and unalienable right to govern themselves,
and thereby secure rights to life, liberty, property, and the pursuit
of happiness. Any attempts to use county, state, or federal levels
of government, judicial, legislative, or executive, to preempt, amend,
alter, or overturn this article or parts of this article, or to intimidate
the people of the Town of Shapleigh or their elected officials, shall
require the Board of Selectmen to hold public meetings that explore
the adoption of other measures that expand local control and the ability
of residents to protect their fundamental and unalienable right to
self-government. Such consideration may include actions to separate
the municipality from the other levels of government used to preempt,
amend, alter, or overturn the provisions of this article or other
levels of government used to intimidate the people of Shapleigh or
their elected officials.
Persons using corporations to engage in water withdrawal in
a neighboring municipality shall be strictly liable for all harms
caused to the health, safety, and welfare of the residents of Shapleigh
from those activities, and for all harms caused to ecosystems and
natural communities within the Town of Shapleigh.
No permit, license, privilege or charter issued by any state
or federal regulatory agency, commission or board to any person or
any corporation operating under a state charter, or any director,
officer, owner, or manager of a corporation operating under a state
charter, which would violate the provisions of this article or deprive
any Shapleigh resident, natural community, or ecosystem of any rights,
privileges, or immunities secured by this article, the Maine Constitution,
the United States Constitution, or other laws, shall be deemed valid
within the Town of Shapleigh. Additionally, any employee, agent or
representative of any state or federal regulatory agency, commission
or board who issues a permit, license, privilege or charter to any
person or any corporation operating under a state charter, or any
director, officer, owner, or manager of a corporation operating under
a state charter, which would violate the provisions of this article
or deprive any resident, natural community, or ecosystem of any rights,
privileges, or immunities secured by this article, the Maine Constitution,
the United States Constitution, or other laws, shall be liable to
the party injured and shall be responsible for payment of compensatory
and punitive damages and all costs of litigation, including, without
limitation, expert and attorney's fees. Compensatory and punitive
damages paid to remedy the violation of the rights of natural communities
and ecosystems shall be paid to the Town of Shapleigh for restoration
of those natural communities and ecosystems.
Within the Town of Shapleigh, corporate claims to "future lost
profits" shall not be considered property interests under the law,
and thus, shall not be recoverable by corporations seeking those damages.
The Selectboard of the Town of Shapleigh or any other agent
or agency of the Town shall be prohibited from taking any action to
annul, amend, or overturn this article, unless such action is approved
by a prior Town Meeting at which 2/3 of the residents of the Town
attending the Town Meeting approve such action.
