DRY WELLS: WHAT CAN MUNICIPALITIES DO?
(from Maine Townsman, December 2001)
By Antoinette Mancusi, Technical Advisor, MMA

The U.S. Geological Survey’s “Current Water Resources Conditions In Maine” report for November 2001 paints a bleak picture.  Ground water levels were in the below-normal range for the entire state.

Ground water levels in Maine are generally still declining, as they have been throughout the summer. All USGS monitored sites are at or near record lows.  Although ground water levels traditionally recharge in late October and November, that recharge did not happen this year and mostly likely will not occur before the ground freezes. This means that ground water levels will probably remain low through the winter.

The Drought Task Force, composed of state, federal and private scientific, natural resource, water use and regulatory agencies, met on November 14 and concurred that drought conditions existed across the State of Maine, and that constant monitoring should continue in the different disciplines of member agencies.  The Task Force reported that “water districts in Calais, Island Falls, New Portland, Winter Harbor, East Millinocket, Monson and Port Clyde” have already requested “voluntary conservation” on the part of their consumers.  “Castine and Boothbay Harbor have implemented mandatory conservation measures.”

What does all this mean for municipalities?  The likelihood is high that low-income residents will be approaching municipalities for assistance with dry wells.  The lower the water table drops, the proportionally higher the chance that someone in your community will contact your municipality for assistance with their well.

What kind of help is available?

According to the Drought Task Force, county emergency management directors and the staff of the State Drinking Water Program report that they are receiving calls from individuals with water supply problems. The majority of calls at the county level are from individuals with dug wells, which are typically more vulnerable in periods of drought.  Despite the severity of the problem, assistance for individuals is currently limited. A few sources of potential assistance include:

USDA, Rural Development.  Some assistance for low-income homeowners with water supply problems is offered through the USDA, Rural Development, Single Family Housing 504 Loan and Grant programs.  The 504 Loan Program provides loans at a 1% interest rate to qualifying low-income individuals.  The 504 Grant program provides individuals over the age of 62 with a maximum grant of $7,500.  Both programs contain many restrictions and as a result interested individuals should contact their local USDA office for details.  Information about these programs is available by calling one of three area offices in the state:

• Presque Isle (serves Aroostook and Washington counties): 764-4155/4157.

• Bangor (serves Hancock, Knox, Lincoln, Penobscot, Piscataquis, Somerset and Waldo counties): 990-3676

• Lewiston (serves Androscoggin, Cumberland, Franklin, Kennebec, Oxford, Sagadahoc, and York counties): 753-9400

Community Development Block Grants.  Another potential source of funding exists through the CDBG program administered by the Department of Economic & Community Development.  Several CDBG programs available to Maine communities could possibly be utilized to fund drought related efforts for low/moderate homeowners or water districts.  Since CDBG monies are only available to Maine units of general local government (all town and cities with the exception of Portland, Lewiston, Auburn and Bangor), a municipality would be responsible for the grant application and administration. Individual homeowners are not eligible to apply.  Programs which can address water related issues include Urgent Need, Housing Assistance, Public Infrastructure and Community Planning.  For more information please contact Michael D. Baran at (207) 624-9816 or mike.baran@maine.gov.  The Office of Community Development website can be found at www.meocd.org.

Emergency Assistance — TANF.  Another resource, which may provide some assistance (perhaps a $500 stipend), is the Emergency Assistance (EA) program through TANF (Temporary Assistance for Needy Families). TANF eligible households should contact the EA program in their local Department of Human Services (DHS) office to see if they are eligible for EA funds. 

Assistance for Farmers.  For farmers, aid packages may become available if an agricultural disaster declaration is received for the state.  The Drought Task Force’s information states that possible avenues for additional funding are being explored.

According to the Task Force, “demand for water well drilling has been high across the state this summer.  Many drillers are booked six weeks to three months in advance.”  Even if the first hurdle — the financial one — is overcome and resources are found to assist low-income families, the second hurdle becomes finding a well driller to perform the work.

GA’s Role?

Capital Improvements. Municipal General Assistance (GA), which every municipality in the state is required to administer, is a relatively adaptable program. Provisions contained in statute and regulation allow the municipality to consider paying the costs of unconventional items and services in times of emergency.  The statute (22 MRSA § 4301) provides the overseer with the discretion necessary in determining what “commodity or service” may be “essential” as long as the decision is consistent with the municipality’s ordinance and Maine law.

This is not to say that the GA applicants or the municipality can overlook established eligibility requirements.  The applicants must still qualify for GA and the item paid for must be a “basic necessity.”  However, the municipality may consider providing GA for items not normally within the purview of the program such as the costs associated with capital improvements and repairs.  Capital improvements, which might be deemed items of necessity, may include repairs to a homeowner’s heating or septic system in addition to water or well systems, i.e., a dry well might qualify.

For municipalities that have adopted the MMA model ordinance, Section 6.8 – Basic Necessities; Maximum Levels of Assistance provides guidance on the issue of capital improvements.

First, the ordinance provides that in the event capital improvements or repairs have been pre-approved by the administrator as a necessary expense, the administrator can allow the expense as a budgeted basic necessity i.e., not consider the monthly payment made on the capital improvement as “misspent” income.

Second, the administrator may actually grant general assistance for capital improvements under certain conditions, when:

1) the failure to do so would place the applicant(s) in emergency circumstances;

2) there are no other resources available to effect the capital repair; and

3) there is no more cost-effective alternative available to the applicant or municipality to alleviate an emergency situation.

In some cases, the entire immediate cost of the capital improvement can be mitigated by the applicant entering into an installment payment arrangement with a contractor. The municipality reserves the right to place a lien on any property pursuant to 22 M.R.S.A. § 4320 when general assistance has been used to effect a capital improvement. The lien process shall be accomplished in the same manner as for mortgage payments…

Remember, as with all other kinds of assistance requested through the GA program, GA is used only as a last resort!  If an applicant can receive assistance from any other program, GA should not come into play.

And, because of the high cost of any well service performed (or any capital improvement cost for that matter) it is best to call the DHS, GA Hotline (1-800-442-6003) to review such cases.  Discussing the case prior to authorizing a large GA expenditure assures the municipality that it will be properly reimbursed by DHS (at least 50% of  total expenditure).

Capital Improvement Liens.  In 1991, the Legislature amended 22 M.R.S.A. §4320 to allow municipalities to place the same type of lien on property (already allowed for mortgage payments) when GA is used to pay for a capital improvement to the property.  (Liens can be imposed on real estate only if the municipality has granted assistance for a mortgage payment or capital improvement. No lien can be imposed for granting assistance for any other basic necessities, such as food, rent, utilities, fuel, etc.)

Although there are some restrictions on the lien process, it at least serves the purpose of allowing the municipality to recover a portion of the equity in the property for mortgage payments or capital improvement expenses paid by the municipality on the home. 

After the GA administrator makes a mortgage or capital improvement payment, the municipal officers or their designee (e.g., the GA administrator, treasurer, administrative assistant, or any municipal official specifically designated by the municipal officers for this purpose) can decide to place a lien on the real estate. Municipalities providing GA for capital improvements (in addition to mortgage payments) should make it a practice to impose such liens on the property benefited regardless of the limitations and administrative burden because it makes sense to try and recoup taxpayer monies which are ultimately responsible for financing such GA expenditures.

Unlike tax liens, however, the lien has no specific term, and it cannot be claimed or enforced except under very restricted conditions. The lien stays in effect against the real estate until it is enforced, but it can be enforced only when the recipient dies or when the property is transferred by sale or gift. It cannot be enforced if the recipient is receiving any form of public assistance (TANF, Food Stamps, GA, etc.) or if, by redeeming the lien, the recipient would again become eligible for assistance. These restrictions were imposed on the GA lien process because the purpose of the lien was not to force GA recipients out of their homes but to enable the municipality to recover the funds it contributed which enhanced the equity in the recipient’s property.  (For complete instructions on the “process” required for filing of the lien, in addition to the sample forms necessary, please refer to the MMA, GA Manual.)

Fire Trucks & Well Filling

The subject of filling dry wells was raised at a Drought Task Force meeting. Several of the members concurred that filling a well with a municipal fire truck was not advisable.  One reason for not doing this is that it would only be effective for a short period of time as the water seeps out.  Additionally, contamination of the well could result.  MMA Legal Services is of the opinion that municipalities should not engage in well filling activities because of liability exposure.  If contamination of a well occurs as a result of a municipality filling a well, the Tort Claims Act will not protect the municipality.  Should the water recipient become ill or die from well contamination, the municipality may be sued and found liable (14 MRSA § 8104-A).

While well filling in times of drought by municipal fire trucks (notably pump trucks) may be a time honored tradition, given the litigious nature of our current society, municipalities filling wells do so at a risk.  If your municipality selects to fill wells despite this warning, make sure you call your insurance provider to determine if the activity is covered. Also, such municipalities should require that residents receiving water in such a manner sign indemnification and release from liability agreements.  Such agreements should clearly state all the risks involved in having one’s well filled.  Finally, under no circumstances should a municipal truck be used to transport water to a well if it has contained anything other than water, e.g., rust inhibitors, chemicals.

Additional Resources

Ground Water Information:

• For information on current provisional ground-water levels in Maine see: http://me.water.usgs.gov

• Information about drought and drought conditions in Maine and the United States is available on the web at: http://me.water.usgs.gov/droughtme.html.

Red Cross Fact Sheets:

• Food and Water in an Emergency http://www.redcross.org/services/disaster/beprepared/foodwtr.html

• Drought: Fact Sheet on Water Conservation http://www.redcross.org/services/disaster/keepsafe/drought.html