The Story of Save Our Groundwater
Save Our Groundwater (SOG) was formed by community residents in the rural, southeastern New Hampshire communities of Nottingham and Barrington in August 2001 to advocate for water in the public trust. We organized in response to a bottled water company’s application to withdraw over 400,000 gallons of groundwater a day from the local aquifer. SOG is a grassroots, all-volunteer nonprofit organization.
Our organization has grown in the last decade to include supporters from around the state and beyond. We have assisted other communities in their struggle to defend their water resources. We have successfully worked with state legislators and public officials to amend New Hampshire’s groundwater protection law (some 9 times and counting!) to provide more opportunities for public participation and better practices for large groundwater withdrawals. Many of our activists have grown into public service at the municipal level on planning board and conservation commissions, nonprofit advocacy and statewide as legislators and members of state commissions as a result of their Save Our Groundwater experience.
What is Groundwater?
Groundwater is accumulated from rainfall seeping downward into underground aquifers over thousands of years. The two types of aquifers most commonly found in New Hampshire are sand/gravel aquifers and fractured bedrock aquifers. The aquifer underlying the bottled water company’s site is a fractured bedrock aquifer, a type that is less well understood by scientists. In the types of bedrock we have here in New Hampshire, water flows largely through cracks in the rock. When the hydrogeology is changed by a pumping action, the water may be pulled from miles away. Naturally occurring contaminants, such as radon, uranium and arsenic are common constituents in the bedrock aquifers of southeastern New Hampshire.
It is important to note that groundwater and surface waters are considered an interrelated natural resource both under the law and in the applicable science—the health of one affects the health of the other. In recharge areas, surface water seeps downward to recharge the groundwater. In discharge areas, groundwater comes back to the surface to feed springs, brook and lakes.
Groundwater Protection in New Hampshire
New Hampshire is one of the few states in our country to have a groundwater protection act on the books. Sixty percent of our state’s residents, businesses, schools, public buildings, faith centers, etc. rely on private wells that use groundwater. Our state led New England with our Groundwater Protection Act, RSA 485-C in 1998. This law covers any large groundwater withdrawal more than 57,600 gallons in a 24-hour period. Vermont adopted its groundwater law in 2008. There is no federal law to protect groundwater resources.
In 2001, the USA Springs, Inc. case was the largest groundwater withdrawal permit application to be received by the state since the New Hampshire Groundwater Protection Act, RSA 485:C, became law in 1991. Since then, in the summer of 2004, another company called Barking Dog Water Company surfaced in Peterborough, NH seeking to withdraw 720,000 gallons/day.
The Statement of Purpose in RSA 485-C: 1, states: “The state, which has general responsibility for groundwater management in the public trust and interest, should develop groundwater protection programs within the scope of this chapter when such programs are not developed by a local entity.” Therefore, this case represents a significant test of the state’s public trust doctrine as it applies to water.
SOG members have worked tirelessly with local and state officials to address the unsustainable, profit-driven water-grab taking place in our rural communities. SOG holds meetings, hosts guest speakers, sponsors rallies at the USA Springs Inc. site, attends public hearings on water legislation, and conducts education and outreach programs in the community to discuss the case and share information about the burgeoning water industry. Wherever there’s a country fair, a town meeting, or groups like the Rotary Club, Chamber of Commerce, and Girl Scouts, chances are SOG members have been there to talk about their work or to host an information table.
The USA Springs, Inc. Case
USA Springs Inc. is a Delaware corporation based in Nottingham, NH and owned by Francesco Rotondo. It is seeking to build and operate a bottled water business on about 100 acres of land located in the rural towns of Nottingham and Barrington. The land is owned by its associated real estate investment trusts (REIT) Garrison Place, Just Cause Realty Trust, and Sweet Review Realty Trust. Francesco Rotondo is also the trustee for the three trusts.
The company’s permit application and incorporation papers both state that it intends to bottle the water for sale domestically and export it to other countries.
The area from which water may be drawn lies in the headwaters of three important Seacoast- region rivers potentially impacted by this project:
•the Oyster River; now one of New Hampshire’s protected, designated rivers
•the Lamprey River, a federally protected wild and scenic river; and the
•Bellamy River, which begins at spring-fed Swain’s Lake in Barrington.
Thousands of residents and local businesses in ten communities depend on these rivers, their associated watersheds and the aquifers underlying them for freshwater supplies, through a combination of private wells and municipal water systems.
The State Groundwater Permitting Process In Action
New Hampshire’s Groundwater Protection Act is administered by the Drinking Water and Groundwater Bureau (formerly the Water Supply Engineering Bureau) of the Water Division in the Department of Environmental Services (DES). The permitting process for a bottled water facility depends on the amount of water to be bottled and involves DES and the New Hampshire Department of Health and Human Services at the state level; it may involve the U.S. Army Corps of Engineers if wetlands are involved.
In November 2002, USA Springs Inc. conducted a water pumping test required under the state’s Groundwater Protection Act before receiving state approval of the test design. The Town of Nottingham had gone to court to try and stop it because of public health concerns raised during the state hearing process. The court decided against the town and the test proceeded.
The pump test results were not submitted to the state until February 4, 2003. The company’s Final Report showed disturbing water quality and quantity issues.During the 10-day test, volatile organic compounds (VOCs), a carcinogen and hazardous waste, had migrated further into the aquifer from an adjacent site owned at the time by Kirby G. Harnum, trustee of the K. and B. Realty Trust. Community residents had previously informed the state in the public hearings and in written testimony that this adjacent site was known to be a source of hazardous waste.
The VOC contaminants at the adjacent site were mobilized in a new direction–towards the company’s wells–from the test’s pumping action. The water level in a number of private wells–some more than one-half mile away–dropped and the test analysis projected the water levels in these wells to drop significantly in a period of 180 days with no recharge. These are considered adverse impacts under the New Hampshire Groundwater Protection Act.
The mobilization of the VOCs created a hazardous waste management case for the state and the company. DES officials immediately notified the Town of Barrington and the Town of Nottingham and proceeded to notify homeowners and local businesses in the area. The site was estimated to cost more than $1 million to clean up.
The 14-acre Harnum site–now a designated New Hampshire hazardous waste site– was purchased for $250,000–roughly $17,857 an acre– by Joseph Fitzgibbons, trustee of the Just Cause Realty Trust on June 11, 2003 (Rockingham County Registry of Deeds, Book 4054, Page 2395).
After the test, USA Springs Inc. reduced their permit request to 310,000 gallons a day. Meetings began to take place between DES, the company’s legal representatives and other state officials to make plans for the clean up. A 3/26/03 letter from the state Attorney General’s office documents that the process was not going well, and that there were disagreements about who knew what when about the Harnum site. The letter documents five instances where the state informed USA Springs, Inc. about the potential contamination at the site. A 9/29/03 letter from a DES engineer documenting a technical meeting with the company revealed the fact that the company stated it would not clean up the contamination the pump test left in the aquifer unless it received its groundwater withdrawal permit and other permits necessary to operate the bottling plant.
Victory for SOG and the local communities came in August 2003 when the Department of Environmental Services (DES) denied USA Springs Inc.’s permit applications and then denied their request for an extension. The DES denial letter cited the contamination on the adjacent property, among 27 independent findings of science. The decision was a resounding victory for the state’s groundwater protection law.
USA Springs Inc. appealed the DES decision within days.
In December 2003, the DES denied the company’s appeal. It seemed another victory for water, SOG, the local governments and the hundreds of community residents who had written letters, called their legislators and participated in public hearings.
These victories were short lived. In a process that defies common sense, within two weeks on December 29, 2003, USA Springs Inc. submitted a letter that it called a new preliminary large groundwater withdrawal application with substantially the same data and the DES accepted this so-called application. There were more hearings and more public comment periods. SOG members felt like they were living a movie rerun.
Meanwhile, the company began to clean up the hazardous waste site that its pump test had mobilized.
On July 2, 2004 news broke that the DES issued a conditional permit for USA Springs Inc. to withdraw 307,528 gallons per day.
Save Our Groundwater, the two towns and three residents all appealed the DES decision to grant the permit. The state denied all the appeals August 9, 2004. Many of the state documents related to this case may be accessed at the Department of Environmental Services website.
The Journey to the New Hampshire Supreme Court
Under the interpretation of the state’s Groundwater Protection Act in effect at the time, further appeals of the state DES decision went directly to the New Hampshire Supreme Court—a costly endeavor with huge legal and administrative bills for our small communities, local residents and SOG. This also meant that there was no opportunity for sworn testimony, cross-examination of witnesses or the establishment of a lower court record.
But New Englanders are a hardy and tough group of people. We don’t give up easily when we believe we are right. And, with much community support SOG simultaneously launched appeals of the DES reversal of its two prior denials with the New Hampshire Supreme Court through our attorney Joshua Gordon and the DES’ Water Council, the administrative oversight body for large groundwater withdrawal permits. The towns of Nottingham and Barrington and one resident also filed court appeals.
The New Hampshire Supreme Court agreed to hear the appeals of SOG, Nottingham and Barrington in an order dated October 13, 2004. SOG, the towns and USA Springs, Inc. argued their cases before the justices September 15, 2005.
On May 19, 2006, the Court returned a very disappointing opinion (Case #2004-601 Appeal of the Town of Nottingham & a.) essentially upholding the state’s permit as what was allowed under existing law and rejecting all the appeals of the two towns, SOG and one resident. Save Our Groundwater published a news release about the Supreme Court decision. A story in the Portsmouth newspaper The Wire, a Portsmouth, NH newspaper, was one of several that covered the outcome. The New Hampshire Local Government Center wrote a summary of the decision.
Local and Federal Permitting Issues
Meanwhile, after years of public hearings and work sessions, the Nottingham Planning Board decided to grant the company permission to build the water bottling factory. Members of the Planning Board explicitly said that they felt that the state’s determination to issue a large groundwater withdrawal permit preempted local control of the groundwater and that this was the controlling factor in their decision.
In 2005, first-term New Hampshire Governor John Lynch formally requested the U.S. Army Corps of Engineers to review the wetlands issues in this case (read more in the Governor’s news release).
The company plans to manufacture plastic bottles and process the water onsite. USA Springs Inc.’s planned bottled water facility has twice the capacity of the amount of water allowed in their permit. How much water does the company really intend to take?
International Trade and Water
Community residents have long wondered if there is an on-going link between USA Springs Inc. and a European businessman, Giuseppe Prevosti, the Luxembourg-based president of three corporations all having past business relationships with the owner of USA Springs Inc. The Prevosti companies own 55 adjoining land parcels totaling 1,487 acres in the Town of Barrington. Under the state’s groundwater law, up to 57,600 gallons a day could be pumped from each lot without any permit. Other activities on the land could take place that might affect the area’s water quality and quantity.
If European investors are involved or if USA Springs Inc.’s ten-year state permit is sold to a foreign corporation, international trade agreements may apply and trade rules under the World Trade Organization (WTO) could come into play. The WTO could possibly overrule the DES as well as local officials.
Concern about the possibility of foreign acquisition and control of New Hampshire’s water supplies heightened when residents learned that the nearby Hampton Water Co., a privately-owned municipal water supplier, was bought by Aquarion, a subsidiary of the Kelda Group, a British firm (it has since been sold to an Australian bank), and Pennichuck Water Works in Nashua, another privately-owned municipal water supplier to more than 20 communities, went up for sale with Vivendi, a French multinational corporation, as a possible buyer (after a lengthy court battle, Nashua has since been successful in purchasing its water system by eminent domain from Pennichuck and today it operates as a publicly owned water system). A state survey found higher water rates among privately-held water companies. Simply put, a for-profit corporation needs to run operations to generate a profit for shareholders; a public system exists to provide a service while maintaining efficiencies for ratepayers). Castle Springs, a former locally owned, small spring water facility in Moultonborough, NH was bought by the French-Japanese corporation Crystal Geyser Roxane. The new owners have increased groundwater pumping through a state permit and associated trucking by more than ten-fold.
SOG has partnered with the New Hampshire office of the American Friends Service Committee in exploring the intersection of environmental resources, states rights and international trade agreements. You can find many of the AFSC position papers relating to water and international trade online.
2008 – USA Springs, Inc. Moves Into Chapter 11 (Reorganization) Bankruptcy
The company had begun building its plant along Route 4, and the bare steel girders rose up a couple levels when all work stopped in the winter of 2008. This first clue that something was amiss was followed by a June 12, 2008 story in Foster’s Daily Democrat titled USA Springs To Sell 100-Acre Parcel. According to the article, on May 30 the company published a legal notice that the property would be sold due to foreclosure at a public auction. The total value of the property, buildings and equipment was placed at $8.4 million.
However, before the auction took place, USA Springs, Inc. filed for Chapter 11 bankruptcy (reorganization) on June 27, 2008. The filing automatically generated a 90-day postponement of the auction. The first hearing in the company’s bankruptcy was held July 16, 2008 at the U.S. Bankruptcy Court in Manchester, New Hampshire and continue to this day. The case number is 08011816-JMD USA Springs, Inc.
As part of the bankruptcy proceedings, it was revealed that USA Springs, Inc. was actually two corporate entities–one a Delaware corporation and one a New Hampshire corporation. The court merged the two under the Delaware corporation.
Also as part of the proceedings, the company represented that they had contracts to sell the New Hampshire water to the nation-state of Malta in Europe. This confirmed community residents’ concerns about the potential impacts of international trades agreements on the state’s ability and jurisdiction to regulate the amount of water removed in times of drought or other local conditions.
As the company tried to make a comeback, its state and local permits continued to expire. The state wetlands permit expired in 2010. The Town of Nottingham building permit has expired. The New Source of Bottled Water permit is no more. We have a list, as does the bankruptcy court.
After a series of failed attempts to find funding to pull itself from bankruptcy, the federal bankruptcy court took control in August 2012 and converted the case to a Chapter 7 Liquidation bankruptcy. A court trustee is now in charge of the process and the public can hope for a bit more transparency than in the past.
Twelve Years Later: The Struggle and The Conversation About Water Continues
SOG members have witnessed the role that politics and big money have come to play in a case that legally should have been determined by the science and hydrogeology of project. Large water users such as beverage and paper manufacturers, USA Springs, Inc. and the bottled water industry as represented by Nestle Waters, N.A. and the International Bottled Water Association continue to lobby hard in New Hampshire.
So many questions still remain:
–What happened in New Hampshire’s state government between August 2003, when the state denied all permits (and then denied the company’s appeals in December 2003) for the USA Springs, Inc. project and July 2004 when the state reversed its decisions and granted the company a 10-year conditional permit?
–Will New Hampshire’s state laws prove to have enough muscle to protect our state’s groundwater, surface waters and wetlands? Do the laws stand up to international trade agreements?
–Will state and local officials have the will to take a precautionary stance when it comes to protecting New Hampshire’s water supply rather than one of mitigation of adverse impacts through conditional permitting?
–When it comes to protecting local drinking water supplies, sensitive wetlands, and the integrity of watersheds as part of the public commons, will the voice of the people be heard?
–And most importantly for Save Our Groundwater members, the local communities (human, plant and wildlife) of three watersheds: when will the scales of justice be balanced in the case of USA Springs, Inc.?
–According to DES, state permits such as the large groundwater withdrawal, run with the land. If USA Springs, Inc. should pull itself out of bankruptcy as another entity or be purchased by another water business, the transfer of community water out of the watershed could continue. This policy also has implications for other large groundwater withdrawal permits issued in New Hampshire.