Tribal leaders seek to end decades-long ordeal, bring clean water to Pleasant Point
On windy days, the water that comes out of the taps on the Passamaquoddy reservation at Pleasant Point runs greenish brown. On a particularly bad day, it can be nearly black.
“It’s been a long time that we haven’t been able to drink our water here on the reservation,” said Denise Altavater, a Passamaquoddy tribal council member.
Over the past 40 years, there have been many attempts to address the water quality issues and find a new source to supply Pleasant Point and neighboring communities, but little has changed.
One major stumbling block is the unique legal arrangement between the State of Maine and the tribes of the Wabanaki Confederacy. For generations, tribal governments in Maine have been prevented from controlling natural resources on tribal land.
Now, a group of Passamaquoddy leaders have renewed efforts to work with local, state and federal officials to resolve some of the problems that have denied them clean water: from the rural district’s lack of funds to jurisdictional restrictions tied to limitations on tribal sovereignty.
More than 40 years of problematic water
The public water supplied to Pleasant Point—or Sipayek in Malecite-Passamaquoddy—and Eastport is provided by the Passamaquoddy Water District (PWD), a quasi-municipal water utility formed by an emergency act of the Maine Legislature in 1983 to take over operations of the failing Eastport Water Company.
“[T]he present water system is inadequate and in need of immediate improvement and repair to protect the quality of the water service…an adequate supply of pure water is essential to the health and well-being of the customers of the Eastport Water Company,” the 1983 act reads.
Long before the emergency action, Pleasant Point residents were skeptical of the water then provided by the Easport Water Company, but contamination was officially recognized after the passage of the 1974 federal Safe Drinking Water Act, which required water utilities nationwide to dramatically increase testing and monitoring.
“I remember the notices started coming around, that tests were coming back with high rates of— I don’t know what you would call that— and we were scared. But we were already not drinking the water, it was already in the community that you didn’t drink the water,” Altavater said, reflecting on her childhood, now more than 50 years ago.
Today, water quality violation notices continue to arrive at households served by PWD as periodic contamination events occur.
“LEVEL OF TOTAL TRIHALOMETHANES IN THE DRINKING WATER EXCEEDS FEDERAL DRINKING WATER STANDARD,” reads a notice sent to area residents in September 2019. “Some people who drink water containing trihalomethanes in excess of the MCL [Maximum Contaminant Level] over many years could experience liver, kidney, and central nervous system problems and an increased risk of cancer.”
Corey Hinton, a lawyer and member of the Passamaquoddy Tribe, said that many of the circumstances that prompted the legislature’s emergency action in 1983 “are pretty much applicable today.” He said, “The engineers that have looked at this, I think, generally agree that PWD is failing infrastructure.”
PWD sources its water from Boyden Reservoir, which is located in Perry and is fed by Boyden Lake (a source that PWD inherited from the Eastport Water Company). Unlike groundwater sources, lakes and reservoirs contain varying quantities of organic matter, such as leaves and other natural debris that can fall into the water throughout the year. When water containing organic matter is disinfected for public use, a group of chemicals called trihalomethanes (THM) can form. THM are toxic to humans in large doses and are widely considered to be carcinogenic, though the severity of their impact on human health is disputed and not fully understood.
THM content is low in most municipal water supplies, but because both Boyden Reservoir and Boyden Lake are shallow bodies of water containing relatively large quantities of organic matter, THM concentrations in PWD water can fluctuate dramatically with weather events.
In 2018 and 2019, PWD water had THM concentrations above the MCL for three quarters of each year, according to data from the EPA Safe Drinking Water Information System.
In addition to spikes in THM, PWD has also had problems with water clarity, also known as “high turbidity,” discoloration and odor. It’s not uncommon for water coming from the taps serviced by PWD to be brown or yellow, according to multiple Pleasant Point residents. A particularly severe example of this occurred on June 16 of this year, when a power outage suspended activity at the PWD treatment plant and multiple residents reported black and brown water pouring into their sinks.
“During windy and wet weather periods the shallow lake stirs up bottom sediments and the outlet stream is flushed causing Boyden Reservior’s water quality to be turbid and contain high levels of dissolved organics,” according to a statement from the Maine Center for Disease Control and Prevention, which oversees the Maine Drinking Water Program (MDWP).
These fluctuations tend to be the most dramatic in the summer when water levels are at their lowest and the reservoir and lake are more susceptible to disturbance by wind, rain, and other weather events.
“The [PWD] water treatment plant is one of the hardest plants to run, not because of the plant but because of the source,” Mark McCluskey of A.E. Hodson Engineers of Waterville, which consults for the PWD, told the Quoddy Tides in January 2019. “Similarly designed plants elsewhere in the state do not have these problems.”
“You add that to the fact that we live in the poorest county in the state, that on the reservation unemployment is even higher than in surrounding towns, and that we live in such a remote area. You add that all to the mix, and it just intensifies the unacceptableness of all of this,” said Altavater.
Regulators say that in-between these contamination events the water provided by PWD is safe to drink and in compliance with federal drinking water standards, but years of notices of contamination and persistent problems with color and odor have led many people at Pleasant Point to avoid using the tap water completely.
For some residents, this means purchasing bottled water at the store. For others who can’t afford store-bought water, a spring in nearby Robbinston has long provided an alternative source where containers can be filled and brought home. Because of the ongoing drought, however, that spring nearly dried up this summer, leaving many residents to rely on bottled water donations from Wabanaki Public Health or, when those aren’t available, to drink the water from the tap.
“At this point in time, as we experience a global pandemic, what we know is that people need fresh clean water to bathe in, and to drink,” said Lisa Sockabasin, director of programs for Wabanaki Public Health. “And at this time, we can’t guarantee that the water that’s coming through the faucet is fit to do either one of those things.”
Financial strain; a rural utility and unique tax structure
In addition to the specific difficulties associated with treating Boyden Lake water, operating rural utilities like PWD is generally challenging, in part due to a limited customer base.
While named after and initially funded by the Passamaquoddy tribal government, PWD was formed to continue to supply three communities with clean water: Pleasant Point, Eastport and Perry. Although PWD no longer serves customers in Perry, it is still managed by a board of five representatives: three from Pleasant Point, one from Eastport, one from Perry.
The populations of Pleasant Point and Eastport both hover around 1,000 people and, according to Ann Bellefleur, PWD’s business manager, the utility has only 840 connections.
PWD’s customer base has shrunk since it’s formation in 1983, as all Perry residents previously connected to its services now obtain water from private wells. In an overhaul of water mains and delivery infrastructure in the 1990s, PWD decided to end services for their remaining customers in Perry and to dig them private wells instead as a cost-saving measure, according to Richard Clark, who has been a member of PWD’s board for over 30 years.
Some of these private wells have also have quality issues, with a 2018 study by MIT finding that 15 percent of Perry wells exceed EPA standards for arsenic.
“We had to make decisions around what’s cost-effective,” said Clark, explaining why the PWD processes lake water. “They’ve looked into aquifers, and other things, but the money for these kinds of projects isn’t there.”
On top the financial constraints due to PWD’s small customer base, the utility also has a unique tax structure. Every other water utility in Maine is tax exempt, but PWD is taxed by the towns in which it operates, Eastport and Perry. The taxes were challenged by the Passamaquoddy in 1998 in a case that went to the Maine Supreme Judicial Court, where they were upheld.
“There were challenges made to the fact that this district was being treated differently, unequally from all other water districts. And the court essentially said that’s how it was set up; to be treated differently,” said Hinton. “I cannot discern a single policy rationale for that because the reason that water districts and utilities like this tend to be exempt from taxes is because their ability to deliver services in rural places with few customers is very, very challenging from a resource perspective.”
PWD, said Hinton, “needs that money to pay for clean water, and here they don’t have that.”
While Bellefleur says the district is financially stable and will continue “providing safe, clean, drinking water,” tribal leadership says that PWD’s revenue is insufficient to fund the kind of infrastructure upgrades that could resolve the contamination issues permanently — such as locating a municipal supply of groundwater.
Hinton estimates that such a project would cost $10-20 million, “the sort of money that could only come from Congress,” he said.
Restrictions on sovereignty stand in the way of clean water
Two fundamental circumstances underlie the water crisis: a lack of funds to address inadequate public infrastructure in a low-income, rural area; and Maine’s limited recognition of tribal sovereignty.
Under current law as defined by the 1980 Maine Indian Claims Settlement Act, tribes in Maine are treated more like municipalities than sovereign nations and have limited authority to utilize natural resources on tribal lands, including the groundwater below them.
Vice Chief Maggie Dana of the Passamaquoddy at Pleasant Point explained during an Aug. 17 information session that previous efforts to secure an alternative source of municipal water have been hampered by the Tribe’s current legal standing with the state.
“As far as sovereignty, the state doesn’t want to recognize our sovereignty. And this in particular is about water sovereignty. We have solutions, and every time that we’ve tried to resolve our own problems — and that’s what sovereignty is — we get blocked from the state or restricted,” said Dana.
For example, most tribal governments in the U.S. have the ability to regulate and permit use of water resources on tribal lands without state government oversight; this is not the case for tribes in Maine. The Pleasant Point tribal government recently dug a well to be equipped with a hand pump on tribal lands in an effort to provide immediate relief to residents most impacted by the dirty water. Because Maine requires a permitting process for such a well, this is slated to take months. Pleasant Point residents say that with the historic drought this summer, they need clean water now, but lack the autonomy to access it.
These same restrictions on well regulation have also prevented safe groundwater from being accessible to Pleasant Point’s elementary and middle schools. There has long been a policy that students cannot drink the PWD water and bottled water has been provided in its place. With the recent construction of a new school, a well has been dug to provide the new facility’s water fountains and kitchen with groundwater. However, state regulations again have prevented the tribal government from independently testing and permitting that well, effectively blocking its use for the time being.
In 2014, the Tribe had nearly secured an alternative municipal water supply by drilling a well on tribal lands, which fall within the boundary of neighboring Perry. However, a test of that well negatively impacted some of the surrounding private wells, leading to the town passing a municipal ordinance limiting well activity; a local ordinance that may not have had jurisdiction over tribal actions if Maine fully recognized tribal sovereignty.
The relationship between the State and the tribes is under renewed scrutiny as the Maine Legislature is set to consider a bill that would expand Maine tribes’ governing power through a series of changes to the 1980 Maine Indian Land Claims Act. However, it remains uncertain whether legislators will reconvene for an emergency session this fall, or if the bill will have to be reintroduced next year. Republicans have repeatedly refused to attend a special session and Gov. Janet Mills has not exercised her executive authority to compel them to return.
“I think it’s long been understood that there’s a split in the relationships between the Tribe and the state of Maine,” said Passamaquoddy state Rep. Rena Newell, who added that over the past 18 months there’s been “a lot of time, a lot of effort, a lot of dedication and resources” to educate people about why tribal sovereignty is so critical.
“Water is our way of life, it’s necessary to live, and it has a direct tie-in to what we’re talking about when we talk about [this bill] and the components and those recommendations,” Newell said.
The Maine Department of Environmental Protection has not responded to questions about how well permitting would be impacted by passage of the legislation.
Tribal leaders including Dana are concerned that further delay of an emergency session in Augusta could jeopardize LD 2094’s passage. They say they need to have their rights recognized in order to take significant action on the water crisis and other challenges facing the tribes.
“We’re thankful that the state is working with us —but just in my opinion — it’s not enough,” said Dana. “They’re going after the small, low-hanging-fruit type of feel-good changes… but the hard issues are not being addressed.”
“We do all this work with the state for a couple of years, and then to get this far and see what’s going on at the State House, that they don’t want to come back into session…it’s very frustrating,” Dana said.
In February, Passamaquoddy leadership convened the first of many government stakeholder meetings to address the water crisis at Pleasant Point. In attendance were representatives from PWD, the Maine State Drinking Water Program (MDWP) and the U.S. Environmental Protection Agency (EPA). They began attempting to identify short, medium, and long-term solutions to the water crisis.
Short-term solutions include increasing testing of PWD water throughout the delivery system to gather data, which would help the utility apply for grants to help pay for upgrades. This information would also be used to keep residents better informed about contamination events. Previously, testing was only performed at the PWD treatment plant and a location in Eastport.
The group has also identified a series of relatively small infrastructure upgrades that would help in the medium-term. PWD plans to install new treatment equipment at the Pleasant Point standpipe, which is anticipated to reduce THM content by 30-40 percent. This project will be partially funded by a MDWP grant from the new Imminent Risk to Public Health State Grant Fund, that “will allow Community Public Water Systems (PWS) serving a population of 3,300 or less to apply for a grant to mitigate imminent risks to public health,” according to the MDWP. PWD has been invited to “pilot” the new funding source to address the ongoing THM contamination.
Passamaquoddy leadership is also working to dig and permit a well on tribal land where a small pump could be installed to provide groundwater on the reservation. This well would not be a municipal source of water, but a location like the Robbinston spring where residents could fill water vessels for personal and household use.
The possible long-term solutions the stakeholder group have discussed focus on the central question: how can a source of clean, municipal water be brought to the district? The EPA is working with the Tribe to fund a feasibility study to consider three different solutions: tapping a groundwater source in neighboring Pembroke, tapping a groundwater source on tribal lands in Perry, or a major overhaul of the current PWD infrastructure.
A similar feasibility study was conducted between 2010 and 2014, and culminated in the drilling of the well on tribal lands in Perry, the 2014 stress test raising water level and quality concerns and the subsequent municipal ordinance blocking well development without town oversight.
Discussions on the new feasibility study have acknowledged that the historic tensions with Perry must be addressed if a groundwater source on tribal lands within the town is to be pursued. Tribal leaders hope to identify a source that could bring clean water to everyone within the district, including Perry residents.
“It’s absolutely necessary that we work together, that we communicate and we collaborate to find resolution to the issues. Our neighbors are in Eastport, our neighbors are in Perry, these are our neighbors. But more importantly, across the whole entire state of Maine, we’re all neighbors,” said Rep. Newell.
For Hinton, the issue with the abandoned well comes back to tribal sovereignty.
“If the Tribe was able to put that land in trust and use that well, the way that it was developed and built to be used, we could have had clean drinking water five, six, seven years ago,” he said.
While the scope of the tribal sovereignty legislation is broad, tribal leaders believe that its passage would have significant implications for the water crisis at Pleasant Point, and possibly bring solutions within reach.
“When the water you consume relates to the health impacts or the longevity of a people, that’s a big statement. I keep thinking of systematic oppression, and it keeps coming back to that. And it’s very tough that when we have these problems and we want to fix them, we keep running into walls or restrictions,” said Dana.
“We need to do more than say words,” Dana added. “We need action.”