STATE OF MAINE                                                                                             SUPERIOR COURT

KENNEBEC, ss                                                                                                     CIVIL ACTION

                                                                                                                                DOCKET NO. 1201

                                                                                                                )

STATE ex rel. ATTORNEY GENERAL and                     )                                                                              

PORTLAND WATER DISTRICT                                      )               CONSENT AGREEMENT CON-

                                                                                                                )               CERNING WASTE DISPOSAL

                                                                                Plaintiffs                )               PERMIT APPLICATIONS

                                                                                                                )               PROCESSING

vs.                                                                                                           )              

                                                                                                                )

LEISURE LIVING COMMUNITIES,                                  )

INC., et als                                                                                             )

                                                                                Defendants           )

 

                The undersigned parties to this Consent Agreement -- Frye Island, Inc., Frye Island Municipal Services Corporation, and Portland Water District -- do, by this Agreement, finally re­solve a dispute concerning the issuance of permits for waste disposal systems for developable lots on Frye Island and phos­phorus discharges to Sebago Lake that may be incident to such development.

                The resolution of this dispute is based upon a study of anticipated phosphorus discharges prepared by the engineering firm of Normandeau Associates, a true copy of which is incorpor­ated by reference and appended hereto as Exhibit A-1. The Normandeau study assumes for study purposes only that phosphorus discharges from development on Frye Island should be limited to a "fair share" of the total contribution of phosphorus from all cities and towns in the Sebago Lake watershed. The Normandeau study calculates that Frye Island's assumed "fair share" of incremental (post May 5, 1988) phosphorus contribution to Sebago Lake would be 15.900 kg/yr. The Normandeau study, at Table 2, indicates the expected phosphorus contribution per newly developed lot, a contribution that varies in size, depending on the classification of the lot. Table 2 of the Normandeau Report thus provides a mathematical method for determining when additional development on Frye Island will exceed Frye Island's "fair share" incremental contribution to phosphorus discharges in Sebago Lake.

                The undersigned parties mutually agree as follows:


 

1.                                                            Portland Water District shall not refuse to issue a waste disposal permit for the development of any lot on Frye Island, based on the expected incremental contribution of phosphorus to Sebago Lake resulting from the development of such lot, if the expected incremental contribution from that lot's development, when cumu­lated with expected contributions from lots on Frye Island developed or permitted for development after May 5, 1988, does not exceed 15.900 kg/yr, when calculated in accordance with the ratios set out in Table 2 of the Normandeau study.

               

1.                                                            Frye Island Inc. and Frye Island Municipal Services Corporation shall cause to be constructed a wet deten­tion pond in Basin 20 of Frye Island for the mitigation of phosphorus discharges in Sebago Lake, in any event no later than five years from the date of this Order, and earlier than five years from the date of this order, if the remaining allotment of 15.900 kg/year of phosphorus contribution from Frye Island, as reflected in Table 2 of the attached Normandeau Report, has been exhausted by waste disposal permits issued after May 5, 1988.

               

1.                                                            If the expected incremental contribution of phosphorus  to Sebago Lake from the development of a lot, when cumulated with expected contributions from lots on Frye Island developed or permitted for development after May 5, 1988, exceeds 15.900 kg/yr, when calculated in ac­cordance with the ratios set out in Table 2 of the Normandeau study, Portland Water District may refuse to issue a waste disposal permit therefore until a wet detention pond is constructed pursuant to the provi­sions of Paragraph 2 above.

               

1.                                                            Following the construction of the wet detention pond, as described in Paragraph 2, Portland Water District shall not refuse to issue a waste disposal permit for the development of any lot on Frye Island, based on the expected incremental contribution of phosphorus result­ing from the development of such lot, if a) the ex­pected incremental contribution from that lot's de­velopment, when cumulated with expected contributions from lots on Frye Island developed or permitted for development after May 5, 1988, does not exceed 27.700 kg/yr when calculated in accordance with the ratios set out in Table 2 of the Normandeau study; and b) the total number of lots developed or permitted for devel­opment on Frye Island has not exceeded 750.

               

1.                                                            Nothing in this consent Agreement shall be construed to be a binding admission by any party that the scientific studies and models on which it is based, or the legal theories incorporated herein, are valid. Nothing in this Consent Agreement shall be construed to otherwise prejudice any party's position with respect to the development of less than or more than 750 lots on Frye Island. Nothing in this Consent Agreement and Order shall preclude Portland Water District from imposing reasonable conditions on waste disposal permits de­signed to minimize phosphorus-laden run-off during the construction phase of any lot development, or from evaluating waste disposal permit applications for com­pliance with any applicable plumbing code.

               

1.                                                            The Order of the Superior Court for Kennebec County dated March 4, 1974 in Civil Case No. 1201, as amended April 23, 1974, shall remain in effect except to the extent inconsistent with this Agreement as incorporated into the Order of said Superior Court to which this is appended.

               

1.                                                            Any party to this Consent Agreement may apply to the Court for enforcement of its terms.

               

                                                                                                PORTLAND WATER DISTRICT

Dated: 3/8/90                                                                                         By (Signed) Joseph B. Tayloy

                                                                                                                  GENERAL MANAGE­R

­

 

Dated: 3/10/90                                                                                       FRYE ISLAND, INC.

                                                                                                                By (Signed) Robert W. Giggey

                                                                                                                  President

 

                                                                                                                FRYE ISLAND MUNICIPAL

                                                                                                                                SERVICES CORPORATION

Dated: 4/20/90                                                                                       By (Signed) Chet Matteria

                                                                                                                  Chairman