AG proposes Town of Bethel oversee 2,300-acre Water District land
If the town of Bethel takes over management of the former 2,300-acre Bethel Water District watershed, it would have to “repair, maintain, and manage all infrastructure necessary to put Chapman Brook back into service as an emergency backup water supply,” under a consent order proposed by the Maine Attorney General’s Office.
But the town could harvest timber (under strict guidelines) and use the income to pay taxes on the land, maintain the infrastructure and manage the land — in that order of priority.
In addition, the proposal provides for limited public recreational access to the watershed, with motorized access limited to snowmobiles.
A special Town Meeting is expected to be scheduled to decide if Bethel will accept responsibility for the land. But there are still many questions regarding such an arrangement, Town Manager Jim Doar said.
In 1925, William Bingham II gave the 2,358 acres, located in Newry, in trust to the BWD’s predecessor, the Bethel Water Co. to serve as the foundation of the town’s water supply.
To protect the purity of the water source, Chapman Brook, Bingham’s deed restricted activity, particularly wood harvesting. Only enough wood can be cut to pay the taxes on the land.
Today, the district pays approximately $4,000 to Newry. (BWD does not pay taxes to Bethel, where 111 watershed acres are located.)
But the watershed and brook no longer serves as the town’s water supply. In 2007, a flood filled the brook and reservoir with gravel and debris, essentially destroying the system as a source of water. New wells were then drilled on the North Road.
The BWD Board of Trustees then had to deal with another provision in Bingham’s deed:
“Provided, however, that if said tract of land shall ever be abandoned as a source of such water supply or cease to be used as such, then in such case, the title to said land shall pass in fee simple to the State of Maine to be by it forever held, maintained and managed as a public game preserve, bird or game sanctuary, public park or State Forest reserve as said State may determine, and under such conditions as said State may prescribe and designate; and in such case the said Bethel Water Company, its successors or assigns, shall execute all necessary instruments of conveyance to give title to said tract to said State of Maine.”
Last year the BWD board went to the AG and sought to modify Bingham’s trust, in order to keep the watershed as a backup water source, and to allow expanded wood harvesting. The additional revenue was intended provide relief in water rates and otherwise benefit customers. The district also wanted to create recreational trails (primarily hiking and snowmobile) on the parcel, as well as maintain Chapman Brook as an emergency source of water. Trustees also wanted to clarify a long-standing lease arrangement with Sunday River Ski Resort for an 9.4-acre parcel at the top of the watershed.
But rather than keep the land with the BWD or transfer it to the state, the consent order proposes another option: that “the Town of Bethel is an appropriate trustee to oversee the use of the Bingham Land as the Water District’s emergency backup water supply and as a preserve, sanctuary, park or forest reserve.”
The order cites the legal doctrine of cy pres, under which a court has the power to order that “a charitable trust be applied to a charitable purpose different from that named by the trustor, where the settlor [Bingham] had an intent to benefit charity and the accomplishment of the settlor’s charitable purpose is impossible or impractical.”
Forestry, buffers, lease
The order requires a forest management plan be put in place that would conserve significant wildlife habitat and preserve the natural resource, recreational and scenic qualities of the land. The plan provides for the restoration and maintenance around Chapman Brook of a 230-foot riparian wildlife management area, which will extend beyond a 100-foot no-cut buffer adjacent to the brook. Timber harvesting “shall not exceed sustained yield levels.”
The order notes that the lease with Sunday River violates the purposes and restrictions of the trust deed, but goes on to say that the lease may continue to be renewed.
If Bethel becomes “unwilling or unable to serve as the trustee,” the land would go to the state.
The AG’s office has also prepared a complaint to file in Superior Court against the BWD to enforce the terms of the trust deed and “grant such other and further relief as justice requires, including application of the doctrine of cy pres or equitable deviation if appropriate.”
But a letter to BWD chairman Brent Angevine says that the AG would prefer to reach an agreement with the BWD and Bethel prior to filing the court case.
The letter recommends that the town and the BWD review the documents with legal counsel, and then arrange to meet with the AG’s office “to discuss resolution of the issues identified in the enclosed pleadings.”
Assistant Attorney General Amy Mills said this week she anticipates an opportunity for public comment before the issue is resolved.
No filters needed
Mills also said that under the order, Bethel would not have to install a filter system as part of the requirement for repairing the Chapman Brook infrastructure in order for it to serve as a backup water system.
“This matter is under review by the town and AG’s Office, and subject to change and ultimately court order,” she said, “however, with that said, the intent of the proposed order was not to require installation of a filter system, as the cost associated with that was the reason the town discontinued use of the Chapman Brook.”
Angevine said Tuesday that there are options for several levels of repair, which were discussed last fall when the board first proposed keeping the land as a backup source.
In an emergency, he said, “We could probably have it back in some fashion in 24 hours,” as the BWD did in 2007. “It wouldn’t take too much to get water from it,” he said.
A “boil water” order would be required, however.
On another level, sections of old piping could be replaced and the impoundment area cleaned out, said Angevine.
As for the consent order itself, he said it would be discussed at the BWD monthly meeting Tuesday. He declined to comment on the proposal until the full board has considered it.
Uncertainty for town
Town Manager Jim Doar said Tuesday that he expects a special Town Meeting will be called on the issue, but the timing and circumstances are yet to be determined.
He said there are many questions regarding the financial implications of providing a backup system. "We'll have to have a decision from the selectmen on how much they want to put into it," he said.
But, he said, he does not expect the board to dismiss the option out of hand. "Something will be brought to the voters," he said.
Doar also said the impoundment area and piping that remains is located on land that will continue to be owned by the BWD regardless of who is responsible for the Bingham parcel, and it's not clear what the arrangement might be with the Water District to maintain the infrastructure.
He said town officials would be accompanied by legal counsel at the expected meeting with AG representatives.