December 12, 2019
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Maine high court allows Nestle’s Fryeburg water deal to stand

BDN file | BDN
BDN file | BDN
Ellen Gorman

PORTLAND, Maine — Maine’s Supreme Judicial Court found regulators acted properly in approving a 25-year water purchasing deal between Nestle Waters, which owns the bottled water distribution company Poland Spring, and the Fryeburg Water Co.

In the decision authored by Justice Ellen Gorman and issued Thursday, the court found that the Maine Public Utilities Commission acted within its authority when the three-person regulatory board approved the contract, despite unusual procedural hurdles caused by various recusals by commission members.

The decision threw out arguments from plaintiffs Food and Water Watch, saying that the deal with Nestle violated the charter of Fryeburg Water Co. It also found that the agreement did not violate certain ratemaking rules at the PUC.

The opinion noted that the court has a high bar for overriding a commission decision, citing a 2015 case establishing the Maine Supreme Judicial Court, which hears PUC appeals, “will disturb a decision only when the commission abuses the discretion entrusted to it, or fails to follow the mandate of the legislature, or to be bound by the prohibitions of the constitution.”

Harry Lanphear, spokesman for the PUC, said that the commission was pleased that the court affirmed the commission’s order in the case.

Nisha Swinton, senior organizer for Food and Water Watch, criticized the decision, and said the sale arrangement for up to 75 million gallons a year to Nestle subsidiary Poland Spring “is a profound loss for Maine citizens.”

Nickie Sekera, a trustee of the Fryeburg Water District and organizer for Community Water Justice, criticized the original decision, saying that regulators should not approve long-term contracts for groundwater purchases.

“It is not within the PUC’s purview to consider long-term environmental impacts of water mining on Maine’s aquifers, and because ‘the precautionary principle’ is not considered, any burden of proof would befall on local citizens, which puts all of Maine at risk from over-extraction,” Sekera said.

The group one year ago asked the Maine Supreme Judicial Court to consider specific parts of the Maine Public Utilities Commission’s decision but also the unusual process by which the case was decided.

All three of the PUC’s commissioners recused themselves from the case over conflicts of interest, as they each had business involvement with Nestle Waters prior to their appointment to the commission. The impasse resulted in new state law allowing Gov. Paul LePage to appoint as alternate commissioners three retired judges: Paul Rudman, John Atwood and Francis Marsano.

Rudman and Atwood decided the case, stipulating that Fryeburg Water Co. could sell bulk water to other companies and would have first dibs on its water in the case of an emergency.

In an appeal to regulators filed Feb. 20, 2015, Food and Water Watch questioned the legal basis for the commission to approve the contract on four points and whether it was appropriate for commissioners who later recused themselves to participate in hearings establishing the evidence that would play a part in the case.

Both alternate commissioners agreed with the companies that the deal provides the water utility “a reliable source of income” that helps keep down rates for other customers.

Poland Spring issued a statement Thursday echoing that point, saying the deal would provide Fryeburg Water Co. steady revenue and retain their ability to limit Poland Spring’s withdrawals in cases of water shortages or emergencies.

It said that it will also continue to provide withdrawal reports to town officials in Fryeburg and to the town’s third-party hydrogeologist.

“These reports provide valuable information to ensure the Wards Brook aquifer continues to be sustainably managed,” the company said.

 



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