Could Maine authorize the Passamaquoddy Water District to take groundwater from Pembroke?

Plain-English summary

In 1986, a legislator asked whether Maine could let the Passamaquoddy Water District obtain water from a source in Pembroke, outside the district's service territory. The Attorney General concluded that L.D. 2299 was constitutional. The Legislature could grant a governmental district power to act outside its territory, and the proposed bill included protections for Pembroke residents even though the opinion said those protections were not constitutionally required. A footnote distinguished a compelled taking from a private owner, which would require just compensation; the Department understood the landowner to be willing to sell.

The AG also said the district's existing charter arguably did not authorize it to develop a water source outside its territory. The territorial reach of an older Eastport Water Company grant was unknown, and the opinion doubted that it extended to reservoirs or excavation outside Eastport. L.D. 2299 would therefore expressly authorize water from the identified Pembroke property.

The opinion distinguished claims by individual neighbors from claims by Pembroke itself. Under the common-law rule it described, a landowner who moved groundwater off the parcel and depleted neighbors' supplies would owe damages to those neighbors. Pembroke, however, would have no claim merely as a town using the water if it did not own land over the aquifer. The bill would add protections for Pembroke residents generally, including those without land over the aquifer.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could the Legislature let the water district draw water outside its service area? A: The 1986 AG opinion said yes. It found no constitutional barrier to granting the district power over a Pembroke source, while noting that a taking of private water rights without just compensation would be different.

Q: Did the district already have authority to obtain the Pembroke water? A: The opinion did not settle the reach of the earlier charter. It said that reach was unknown and at least doubtful outside Eastport, so L.D. 2299 arguably supplied authority the district lacked.

Q: Could neighboring Pembroke landowners recover if an offsite sale depleted their wells? A: Under the common-law rule described in the opinion, a landowner conveying groundwater off the parcel would owe damages to neighbors whose supply was reduced. That differed from drawing water on one's own land for domestic use.

Q: Could Pembroke sue solely because the diversion affected the town's water supply? A: The AG said the town would have no such common-law claim if it did not own land over the aquifer. The proposed bill addressed that gap by protecting Pembroke residents generally.

Background and statutory framework

The district's 1983 charter tied its water sources to the Pleasant Point Reservation and sources available to the Eastport Water Company. The AG questioned whether the company's 1887 grant reached beyond Eastport. L.D. 2299 identified water on Lincoln Company property in Pembroke and would expressly expand the district's authority while conditioning its use to protect the local water supply.

Citations and references

• P.&S.L. 1983, ch. 25, and P.&S.L. 1887, ch. 22, the district and company charters discussed in the opinion.
• Baxter v. Waterville Sewerage District, 146 Me. 211, 219 (1951), on the Legislature's power to assign functions to a district.
• Chesley v. King, 74 Me. 163, 170 (1882), and Chase v. Silverstone, 62 Me. 175 (1873), cited for the groundwater rule.

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1986/ag_19860508.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

/ JAMES E. TIER",H
86-13
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

May 8, 1986

Honorable Harry L. Vose
Maine House of Representatives
State House Station #2
Augusta, ME 04333

Dear Representative Vose:

You have asked several questions concerning Legislative Document 2299, "AN ACT to Amend the Charter of the Passamaquoddy Water District." First, you ask whether the bill is in any way unconstitutional in that it authorizes the taking of water from the Town of Pembroke and the conveying of such water to the Passamaquoddy Water District, whose purpose is to provide water to areas of the State outside of the Town of Pembroke. Next, you ask whether the bill is necessary to enable the District to obtain waters from sources outside its service territory. Finally, you ask whether the bill will effect any change in the common law regarding the power of private persons in Pembroke to convey water drawn from aquifers beneath their land to the District.

For the reasons which follow, it is the opinion of this Department that the bill is not unconstitutional; that it is at least arguably necessary to empower the District to obtain water from outside its territory; and that it does alter the common law regarding the appropriation of water by private persons by placing restrictions on the power of such persons in Pembroke to convey water to the District. In short, the bill allows the District to obtain water from within Pembroke, which it might otherwise not be able to do, but imposes conditions on that purchase to insure the maintenance of adequate water supplies in Pembroke, which would not be the case at common law.

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I. Constitutionality of L.D. 2299
As the Supreme Judicial Court of Maine has had occasion to observe many times since the entry of the State of Maine into the Union, "a municipal corporation has no element of sovereignty. It is a mere local agency of the State, having no other powers than such as are clearly and unmistakably granted by the law-making power." Inhabitants of the Town of Frankfort v. Waldo Lumber Co., 128 Me. 1, 4 (1929), quoted with approval in Baxter v. Waterville Sewerage District, 146 Me. 211, 219 (1951). Thus, in the Baxter case, the Court found no constitutional difficulty with the creation of a sewerage district with the identical boundaries of the City of Waterville, and the transfer of various governmental functions previously exercised by the City to the District.
That being the case, there· is no constitutional barrier to the Legislature assigning specific powers to a governmental entity such as the Passamaquoddy Water District, even if those powers are to be exercised in part in territory outside that of the governmental entity in question. Consequently, the Legislature would be free simply to authorize the Passamaquoddy Water District to take water from an aquifer located within the Town of Pembroke, without in any way providing protections to the citizens of Pembroke against the consequences of such a transfer.i/ As indicated above, L.D. 2299 does provide substantial protections to the citizens of Pembroke against hardships occasioned by the loss of the water. In the opinion of this Department, however, such protections are not constitutionally required. II. Effect of L.D. 2299 on Statutory Authority of the Passamaquoddy Water District
Your second question is whether L.D. 2299 adds anything to the powers of the Passamaquoddy Water District to obtain water which it does not already possess by law. The District was created in 1983 for the purpose of supplying water service to

i/ This is not to say that the Legislature could authorize the taking of such water from a private person without the payment of just compensation. Such an action would violate the Fifth Amendment of the United States Constitution, and.Art. L,
§ 21 of the Maine Constitution. This Department understands, however, that the owner of the land over which 'the aquifer described in the bill is located is willing to sell his rights to the District.
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the city and the Pleasant Point Passamaquoddy Indian Reservation, the Town of Perry, the City of Eastport and the customers of the Eastport Water Company. P.&S.L. 1983, ch.

25. For its source of supply, the District was authorized, to
    obtain water from the Pleasant Point Reservation or from any "source from which the Eastport Water Company is now authorized to take water." P.&S.L. 1983, ch. 25, § 2. The Eastport Water Company, in turn, was created by the Legislature in 1887, P.&S.L. 1887, ch. 22. For its source of water, the Eastport Water Company was authorized
    . . . to erect and maintain reservoirs and
    stand-pipes and lay down and maintain pipes
    and aqueducts necessary for the proper
    accumulating, conducting, discharging,
    distributing· and disbursing of water, and
    forming proper reservoirs therefor, and said
    corporations may take and hold by purchase
    or otherwise, any lands or real e~t~te
    necessary therefor, and may excavate through
    any lands when necessary for the purposes of
    this incorporation. P.&S.L. 1887, ch. 22,
    § 3.

The territorial range of the powers granted by this provision is not known; nonetheless it is at least doubtful_that the Eastport Water Company, and therefore the Passamaquoddy Water District, possesses any authority to create reservoirs or excavate for water outside of the boundaries of the Town of Eastport.
In view of this doubt, L.D. 2299 was introduced to permit the Passamaquoddy Water District to take water "from any surface or underground brook, spring or vein of water located on property presently owned by the Lincoln Company on Little Falls Roa~ in the Town of Pembroke." L.D. 2299, § 1 (112th Legis. 1986), amending P.&S.L. 1983, ch. 25, § 2. The bill thus would expressly authorize the District to do what it is possible that it may not do at present: obtain wate~ from a specific source outside of its service territory. Thus it is poss1ble to fairly view the bill as enlarging the powers of the district to obtain water, since those powers may at present be limited to waters found on or beneath such territory. III. Effect of L.D. 2299 on Common Law Your final question concerns the effects which L.D. 2299 will have on the common law. In particular, you inquire whether in the absence of the provisions of the bill providing various protections to the residents of the Town of Pembroke with regard to their water supply, such residents, or the Town itself, would have any recourse against the District, or the person or persons conveying water to it from aquifers within Pembroke, for the loss of such water.
· In general, the common law rule concerning the appropriation of groundwater is that a person drawing water from a well dug on his own land for domestic purposes is not liable in damages to anyone else whose water supply has been depleted thereby. Chesley v. King, 74 Me. 163, 170 (1882); Chase v. Silverstone, 62 Me. 175 (1873). If, however, the water in question is taken off the parcel of land from which i~ was drawn, such action will oblige the landowner to compensate persons who are damaged thereby. 93 C.J.S. Waters§ 93c(l) (1956). Thus, if the owner of the land in Pembroke addressed by the bill were to reduce the water supply of his neighbors by conveying water off the property to the District, he would be liable in damages to them.
Such liability would not, however, run to the Town of Pembroke. In Kennebunk, Kennebunkport, and Wells Water District v. Maine Turnpike Authority, 147 Me. 149 (1951), the Supreme Judicial Court held that the mere fact that a public body which is not a riparian owner is making use of a body of water for a water supply does not obligate another riparian owner to compensate it for activity which might affect the quality or quantity of the water. Only as a riparian owner would the public body obtain such rights. Thus, if the Town of Pembroke did not actually own land over the acquifer in question, it would have no cause of action against anyone for the removal of the water therefrom.
As indicated above, L.D. 2299 alters this situation by providing various protections to all the residents of Pembroke, both those owning land over the aquifer and residents of the town generally, to insure that the removal of the water will not threaten their water supply. For the reasons just described, these protections are generally not available at common law. Thus, the bill may be viewed as increasing the protections available to the residents of Pembroke with regard to their supply of water.

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I hope this answers your question. Please feel free to re-inquire if further clarification is necessary.

/
/

, /JAMES E. TIERNEY
['/ Attorney General
~

JET:vo
cc: Governor Joseph E. Brennan
Senator Larry M. Brown
Co-sponsor of L.D. No. 2299
Senator John E. Baldacci
Co-chairman, Joint Standing Committee on Utilities Representative Fred W. Moholland