SESSION A:

Title: Why Not Reasonable Use?

Author: Scott Anderson
Verrill Dana LLP, One Portland Square, Portland, Maine 04112. sanderson@verrilldana.com. (207) 253-4540

Purpose
Present the current rule in Maine regarding withdrawal of groundwater and discuss whether this rule should be changed.

Significant Results
After an initial discussion of how groundwater is unique from other natural resources, such as lumber or fisheries, I will discuss the five alternative rules states have adopted to regulate groundwater extraction: Absolute Dominion, Reasonable Use, Correlative Use, Restatement Rule, and Prior Appropriation.

Maine is a Absolute Dominion state, which allows the owner of a parcel to extract as much water as he or she desires. The rule was adopted in the late 1800s and reaffirmed in 1999 by the Maine Law Court. The basis for this common law rule is that owners have an unlimited right to resources under their property. This rule is significantly harsher on abutters than rules adopted by other jurisdictions.

The Maine Legislature has enacted two exceptions to the Absolute Dominion rule. Title 38, Section 404, protects "preexisting beneficial domestic use." Also, the bulk water transfer statute, Title 22, Sections 2660 and 2660-A, requires a permit for some transfers of bulk water and imposes certain environmental and commercial conditions. Both statutory exceptions are limited, however, and do not address all conflicts that have arisen over extraction of groundwater for bottled water. I will discuss problems that may arise under existing law as conflicts over groundwater intensify.

Conclusion
The Absolute Dominion rule is harsh and outdated. Maine should adopt a "Reasonable Use" or "Reasonable Use/Correlative Use" blended rule, to regulate competing claims to groundwater.

Scott D. Anderson is an Associate representing parties in environmental matters in administrative, regulatory and litigation proceedings. Scott has assisted individuals and corporations in obtaining federal, state, and local environmental and land use permits for a myriad of development projects. Scott counsels parties on compliance with environmental laws and represents parties in municipal land use proceedings involving subdivisions, site plan review, and shoreland zoning. As part of his land use practice, Scott has represented clients in constitutional and statutory matters involving state and federal "takings" jurisprudence, delegation of state regulatory authority, and procedural and substantive due process claims. Scott has also litigated matters in state and federal court involving local land use regulations, federal environmental laws, including CERCLA, the Clean Water Act, and the National Environmental Policy Act and compliance with state regulatory requirements, including the Maine Site Location of Development Law and Natural Resources Protection Act.

Scott joined Verrill Dana in 2001, and was previously a litigation associate at a large Boston law firm. Scott is a 1994 graduate of the University of Massachusetts where he received a B.A., magna cum laude, in Political Science and in 1999 he received his J.D., cum laude, from Boston College Law School where he served as Executive Editor of the Boston College Environmental Affairs Law Review and was a member of the National Moot Court Team. Scott is admitted to practice in Maine and Massachusetts.