Nestle: A Defeat and a Victory

On May 12 after a nearly 4 year battle, Fryeburg, Maine lost its appeal in the Maine Supreme Court to Nestle Waters North America, confirming the Maine Public Utility Commission’s initial approval of a 45 year contract for the bottled water giant to mine water from the small White Mountain community, despite overwhelming opposition among area residents.

For more information on this battle and the court case, follow‪#‎WaterJustice‬ ‪#‎WaterIsLife‬ ‪#‎Nestle‬ #Water, like Community Water Justice on Facebook,

and check out these articles:

Maine high court allows Nestle’s Fryeburg water deal to stand

Nestlé Just Gained Control Over This Town’s Water for the Next 45 Years

On the other side of the country, Hood River County, Oregon, handily defeated Nestle’s proposal for a bottling plant.  Here is the press release from David Delk, President of the Alliance for Democracy, Portland, OR and co-chair of the national Alliance for Democracy:

 

Oregon voters Tuesday in Hood River County delivered a stunning defeat to Nestle.

In the epic battle between Nestle and people around the world to protect their access to water, little Hood River County in Oregon just achieved a major and unique victory. And Alliance for Democracy was a part of that, having provided volunteers and financial support over the course of eight years.

Nestle had proposed building a bottled water plant in the Columbia River gouge town of Cascade Locks, using over 100 million gallons of publicly-owned water a year, and creating more than approximately 1.6 billion plastic water bottles each year. Cascade Locks, hoping to develop its tourist industry, would have suffered over 200 daily truck trips on their roads. Cascade Locks is located at the western edge of the nationally renowned and protected Columbia River Gouge. Opponents to Nestle’s plans also stressed the detrimental effects extracting this pure cold spring water would have on salmon, considered a bellwether species by Native Americans.

 

Nestle promised up to 50 low-tech jobs and an increase in the town’s tax base.

 

But a coalition of residents, farmers and Native Americans organized in opposition and today were successful in saying “No to Nestle, the water belongs to the people, not a water privateer.”

 

On an initiative question, Hood River county voters were asked to approve a novel measure to ban the commercial bottling and transport of water in quantities greater than 1000 gallons daily. And today they voted 69-31% to approve the initiative measure.

 

“Today victory at the ballot shows that when the people organize to stop corporate domination, we can win,” said David Delk, President of the Alliance for Democracy, Portland, OR and co-chair of the national Alliance for Democracy.

 

 

 

 

Rail / Water ties with Nestle: update from Western ME

from Nickie Seckera of Community Water Justice

August 31, 2014

 

Hello everyone,
Update from Western Maine –

It pleases me to hear that gubernatorial candidate Mike Michaud has vocalized a lack of support for an East-West Corridor.  YES.  Michaud has however expressed interest in exploring / supporting rail options for the transport of natural resources.  Here is Western Maine, things are becoming more serious now in discussions of resurrecting the Mountain Division rail line from Montreal to Portland through a high point of Crawford Notch in the White Mountain National Forest just over the border in New Hampshire.  Industry besides oil that may be pushing for this very expensive privately-funded project is a new $80 million wood pellet processing factory (300,000 tons of pellets per year) that was built recently for export to Europe.

Additionally, Maine’s water is at risk for further exploitation by Nestle (Poland Spring brand).  Nestle is planning on building ANOTHER bottling plant in Fryeburg, though the world’s largest water bottling plant lies a mere 35 miles away.  Currently, business people in Fryeburg are looking to industrialize a very large area right alongside the rail route and records indicate that Nestle has secured permits for railroad access.

This article appeared in a local paper last week about the proposed rail route:
http://www.conwaydailysun.com/newsx/local-news/115938-passenger-rail-from-portland-maine-to-montreal

**Keep watch – a decision could be handed down from the MPUC in as little as 6 weeks for an approval for a precedent setting 25-45 year contract for Fryeburg’s groundwater.  We just received notice that they will not be opening a new docket and the Commission will be upholding a ruling set by our conflict-of-interest ridden commission.  Communities of Maine simply do not appear to be able to fight Nestle’s deep pockets and ability to intercept our democratic process.  You can view the case file at the Maine Public Utilities Commission website:

CASE NUMBER: 2012-00487
Utility/Industry Type: Water
Utility/Industry Subtype: Water

To keep abreast of the water situation in Fryeburg, Maine and beyond, feel free to connect to Community Water Justice on Facebook for updates.
Thank you all for your diligence, concern and willingness to create a positive vision for the future of Maine – the way life should continue to be!
Nickie

 

LePage, utilities commissioner conflict over PUC recusal standards

Link to Original Article

Wednesday, July 30, 2014 | By Naomi Schalit ©Maine Center for Public Interest Reporting

A conflict over ethics between Gov. Paul LePage and a member of the state’s Public Utilities Commission has been settled in the short term, but threatens to produce more controversy over the long term.

The conflict was resolved when Gov. Lepage recently appointed former Superior Court Judge John Atwood to substitute for commission member David Littell on a high-profile case from which Littell recused himself because of a conflict of interest. That was a reversal of LePage’s earlier position, in which he refused to appoint a substitute for Littell, saying he didn’t believe Littell’s reason for recusing himself was legitimate.

The three members of the Public Utilities Commission (PUC) decide how much Mainers pay for water, telephone, electricity and natural gas service.

But LePage also said if Littell is going to recuse himself on this case, the governor has a list of eight other cases he thinks Littell should remove himself from because of similar conflicts of interest, including a prominent case mounted by citizens opposed to the use of so-called “Smart Meters” at their homes.

“The public deserves to have commissioners that do not selectively avoid cases,” wrote LePage in a letter to Littell that was accompanied by the list of cases.

In response, Littell accused LePage of improperly interfering with the PUC, an independent government agency, and “attempting to direct or influence whether a Commissioner … sits on a particular case.”

If the governor wanted to continue the discussion about his participation in cases, Littell wrote, he should raise the issue through proper Commission channels.

“I do not intend to continue this correspondence,” wrote Littell, “and suggest your office follow the legal requirements for participating in Commission cases and communicating with Commissioners on cases in front of us.”

No bias allowed

A variety of laws and rules govern the behavior of PUC commissioners. The rules are meant to prevent situations in which a commissioner appears to, or actually does, favor a former employee, family member, friend or business associate during proceedings.

The state’s Administrative Procedure Act requires that “Hearings shall be conducted in an impartial manner.” The state’s conflict-of-interest laws state that, “Every executive employee shall endeavor to avoid the appearance of a conflict of interest by disclosure or by abstention.” If a commissioner is an attorney, state Bar rules regarding conflicts apply, and the ethics code of the National Association of Regulatory Utility Commissioners also apply to all commissioners.

The argument between LePage and Littell began on May 5, when Littell recused himself from a case involving the multinational Nestle Waters corporation, saying his past association with Pierce Atwood, a prominent law firm involved in the case, created the appearance of a conflict of interest. Littell was formerly a partner at the law firm, which represents Nestle and the Fryeburg Water Co., and he worked there on legal matters for Poland Spring before the brand was acquired by Nestle.

Nestle and Fryeburg Water Co. want commission approval of a 25-year contract allowing Fryeburg to sell water to Nestle. The proposal is opposed by some residents and national water-rights advocates, who say the price Nestle will pay for the water is too low and that the deal could put Nestle’s claim on Fryeburg water ahead of residents’ right to it.

Littell was the third commissioner to remove himself from the case because of conflicts related to ties to a company or law firm. His recusal came seven months after he initially said he did not need to recuse himself, and he said his change of heart came after his potential conflict of interest was featured in news stories in the Portland Press Herald about the conflicts faced by PUC commissioners in the case.

After the first two commissioners, Mark Vannoy and Thomas Welch, recused themselves because they had each previously worked for Nestle Waters, the commission was left without a quorum of two to decide the case, and PUC consideration of the deal couldn’t go forward.

That led lawmakers to join with LePage in passing legislation this past spring that allows the governor to appoint retired judges as substitute commissioners. LePage then used his new power under the legislation and appointed retired Maine Supreme Judicial Court judge Paul Rudman to sit as an alternate commissioner with Littell on the case.

But then, when Littell recused himself, LePage responded that an appearance of a conflict wasn’t enough to disqualify Littell from participating in the case.

“By applying the standard you outlined in your memo, as Commissioner you would be unable to participate in cases ranging from telecommunications to wind development,” wrote LePage in a May 13 letter to Littell.

LePage said that he wouldn’t appoint another judge to replace Littell.

LePage’s rejection of Littell’s recusal rationale has prolonged a discussion among lawmakers and agency personnel of state policy regarding conflicts of interest at the Public Utilities Commission.

That discussion was prompted by public concerns about conflicts of interest in the Nestle case, which led, in part, to a study by the Legislature’s Office of Program Evaluation and Government Accountability. That study, released in October 2013, concluded that the “PUC should take additional steps to minimize risk of actual or perceived bias in its regulatory activities.”

LePage began his part of the discussion by threatening not to appoint a substitute commissioner and then, once he withdrew that threat, by challenging the appropriateness of Littell participating in similar cases to the Nestle-Fryeburg one.

Littell’s response was to tell the governor, “The decision to recuse myself … is my responsibility, and I continue to believe I am making an appropriate and correct decision.”

And Littell threw down his own challenge to LePage: If the governor wants Littell to recuse himself from additional cases because of conflicts between his past association with Pierce Atwood and present cases represented by the law firm, why is he not “asking the same” of the other two commissioners at the agency. PUC Chairman Welch, for example, was an attorney at Pierce Atwood before he joined the commission.

But in between the volley of letters between the two, others have weighed in, suggesting that clarification of recusal standards may be in order.

On July 8, Sen. John Cleveland, D-Auburn and Rep. Barry Hobbins, D-Saco, wrote to LePage, saying that “we are committed to work to make changes, if necessary, to further refine the legislation” that gave the governor the power to appoint replacement commissioners in the event of a recusal.

LePage agrees that something should be done, and in his letter appointing Atwood to replace Littell, told the PUC that, “I will be submitting legislation in the next session that ensures that this does not occur again and recusal standards are consistently applied.”

And despite his boss’s confrontational approach, LePage’s top energy staffer, Patrick Woodcock, took a more conciliatory tack.

“I think the governor was concerned that perhaps a new standard was being used to explain this specific recusal and there are a lot of controversial cases before the PUC, lots of cases involving the former law firm that the commissioner worked at,” said Woodcock. “I think everybody, all of us, should work to create a consistent and clear and understandable recusal standard.”

The Maine Center for Public Interest Reporting is a nonpartisan, non-profit news service based in Augusta. Email: pinetreewatchdog@gmail.com. Web: pinetreewatchdog.org.

 

 

Monterey citizens group eyes ballot measure for public buyout of private water company

By Jim Johnson. Crossposted from Monterey County Herald

A citizens group in Monterrey is putting forward a ballot that would require the water district to draw up plans for taking water services back into public hands. Services are  controlled currently by private company California American Water. Their exorbitant profits and mismanagement, including a failed desalination project and an expensive dam removal, have led to growing anger against the company and provide an opportunity to put water back under public control. Continue reading

For regulators and Nestle Waters, conflict by the gallon

All three PUC commissioners and Maine’s public advocate have ties to Poland Spring’s parent company, which is seeking a 25-year contract.

By Colin Woodard cwoodard@pressherald.com | September 3, 2013 | Portland Press Herald

Link to Article.

FRYEBURG – When the Maine Public Utilities Commission this week takes up a controversial 25-year contract between the company that owns the Poland Spring brand and the family-controlled utility that supplies its water, it will do so under troubling and unprecedented circumstances: All three PUC commissioners, as well as the state’s public advocate, have ties to the company.

click image to enlarge

A Poland Spring truck heads south on Route 302. Fryeburg’s quality water is the result of quartz-rich geology and clean runoff.

Photos by John Patriquin/Staff Photographer

click image to enlarge

Fryeburg residents Bruce Taylor, left, an intervenor in the case, stands with contract opponents Cliff Hall and Nickie Sekera in front of the Poland Spring offices on Main Street in Fryeburg.

Additional Photos Below

Related headlines

Related Documents

Agreement between Nestle Waters and Fryeburg Water Co.
PUC recusal responses Oct 2012

The PUC will hear final arguments Tuesday on the contract between Nestle Waters North America and the privately held Fryeburg Water Co. But the proceedings are jeopardized by the commissioners’ apparent conflicts of interest.

 Commissioner Mark Vannoy, who has recused himself from the proceedings, worked on 20 Nestle Waters projects — including 15 at Poland Spring facilities in Maine — while employed as an executive and project manager by the engineering firm Wright-Pierce.

 Before joining the PUC in 2011, Chairman Thomas Welch was an attorney at Pierce Atwood, where he represented Nestle Waters for several years, including during the 2008 reorganization of the Fryeburg Water Co. that set the stage for the current contract.

 Commissioner David Littell was a partner at Pierce Atwood — which currently lobbies for Nestle Waters in Augusta — until 2003, although he didn’t personally work with Nestle. Neither Welch nor Littell has recused himself.

 Even the official responsible for representing ratepayers before the PUC, Public Advocate Timothy Schneider, has conflicts. Until his appointment in March, Schneider was a utilities attorney at Pierce Atwood who helped prepare the Nestle and Fryeburg Water Co. case now before the PUC. He has recused himself, and his deputy, William Black, is representing the Public Advocate’s Office in the proceedings.

“Every commissioner on the PUC has been touched by Nestle,” said Fryeburg resident Scot Montgomery, who manages a restaurant kitchen in the nearby White Mountains and has been involved in local water issues. “Everyone who’s supposed to be looking out for the ratepayers, communities, and resource seems to have this other interest.”

The Fryeburg Water Co. is seeking PUC approval of a proposed 25-year contract with Nestle Waters, a subsidiary of Switzerland’s Nestle SA, the world’s largest food and beverage company. Under the agreement, the water company would get a stable, predictable flow of cash for water Nestle pumps from its spring on Wards Brook, while Nestle would cement control of this key supply of spring water, possibly paving the way for investment in a multimillion-dollar bottling plant in Fryeburg. The contract can be extended for up to 40 years.

Proponents say the contract would stabilize a long-term business partnership that has served the town and its water customers well. Critics fear the leaders of the Fryeburg Water Co. are selling the community short, giving up a valuable resource for much less than it is worth now, better yet a quarter century or more hence, when population growth and climate change will tax water supplies worldwide.

Opponents of the contract have filed motions for a second time with the PUC asking Welch to recuse himself. He said he is reluctant to do so, because it will make it impossible for the PUC to rule on the case, as there would no longer be a quorum. By law, a solitary commissioner cannot make a ruling.

“This is the situation that you wish wouldn’t come along,” said Welch, who doesn’t fault critics for being concerned about the appearance of conflict. “It’s an uncomfortable case, and I wish in many ways that I could have nothing to do with it, but there’s a strong case for allowing it to go forward.”

It is rare when even one PUC commissioner has a conflict in a case but extremely so for multiple commissioners to have a conflict at the same time. Experts say the situation highlights the danger in appointing officials with overlapping backgrounds, creating the potential for overlapping conflicts that could undermine the PUC’s credibility or render it unable to rule on some cases.

“That is pretty certainly remarkable,” said public utilities scholar Sanford Berg, director of water studies at the University of Florida Public Utility Research Center. “It looks to me like a series of appointments has led to a situation where, in retrospect, you might wish to have more diversity and people with somewhat different backgrounds for addressing this particular case.”

The commissioners and public advocate are all appointed by the governor and confirmed by the state Senate. Littell was appointed by Gov. John Baldacci, a Democrat who is now a senior adviser in economics and government relations at Pierce Atwood. Welch, Vannoy and Schneider were appointed by Republican Gov. Paul LePage.

Gordon Weil, a utilities consultant from Harpswell who served as Maine’s first public advocate in the early 1980s, said governors should be more careful to avoid appointing commissioners and a public advocate with overlapping conflicts. “You can avoid this situation by not appointing people with the same background or who have connections to the same firms,” he said. “Any appointee to a regulatory body has to be looked at in terms of how they fit with the whole panel, not just as an individual.”

Peter Bradford — who served on the Maine PUC for 11 years in the 1970s and 1980s, on the New York State PUC from 1987 to 1995, and on the federal Nuclear Regulatory Commission from 1977 to 1982 — said that in all that time he recalls no more than five recusals of individual commissioners. “It’s not an everyday or even an every-year occurrence,” he said from his home in Vermont. “It’s a really rare event, and to get two recusals on the same case is even rarer than that.”

“I must say, I’ve never heard of a situation where so many appointees came from the same law firm,” Bradford added. “When I was in Maine, it would have been something of an eyebrow-raiser to have had a couple of commissioners from either Pierce Atwood or Verrill Dana, because those firms represented something like 80 percent of the utilities that had business before the commissioners.”

The governor’s office said the Fryeburg case is an unusual event and that the potential for overlapping conflicts will disappear over time.

“To my knowledge, a similar situation has never materialized in Maine,” LePage’s spokeswoman, Adrienne Bennett, said in a written response. “The circumstance is what we consider a ‘perfect storm.”‘

She said Vannoy had recused himself “based on financial interests” rather than ethical conflicts and that those “will be resolved in the near future rendering him able to serve should these types of matters come before the Commission again.” Disclosures show he was a minority shareholder in Wright-Pierce when he was appointed in May 2012.

Bennett noted the tension between finding people with the technical knowledge and experience to serve on the commission and the potential for conflicts garnered while accumulating that experience.

“Governor LePage believes that the nomination of an individual to serve on the Commission is one of the most important decisions that he makes and focuses on finding competent and experienced individuals to serve,” she said. “This is not an easy process nor is there an abundance of applicants who are seeking to serve on the Commission.”

Others questioned the background of the public advocate. Weil, the first to hold the position, said it was unprecedented for the advocate to have a background representing utilities, rather than consumers. That is nearly so. There have been just five public advocates since the position was created in 1982. Paul Fritzsche, who served in the mid-1980s, had worked with Pine Tree Legal Assistance. Stephen Ward, who held the position for 20 of those years, had been a staff attorney in the Public Advocate’s Office. Richard Davies, who succeeded him in 2007 and stepped down in February, had been a legislator and an aide to Govs. Joseph Brennan and Baldacci, but also founded a lobbying firm that represented both consumer groups and utilities. The other two public advocates — Bradford and Weil — had consumer-side backgrounds, Bradford having been described by The Washington Post as the “liberal mainstay” and primary nuclear power opponent on the NRC in 1981, when he left to become Maine’s second public advocate.

“The regulatory process depends to a considerable degree on people’s confidence in its integrity,” Weil said, “and anything that might possibly undermine that confidence is not desirable.”

Bradford, who also spent many years as PUC chairman, said Maine legislators should consider legal changes to allow for the appointment of alternate commissioners when a sitting one recuses himself. “This way of dealing with it puts less of a constraint on who gets appointed, and lets you not spend so much time trying to scratch your head and try to see the future in terms of potential conflicts,” he said.

FRYEBURG CASE CONFLICTED

Many in this town of 3,500 people are especially sensitive to perceived conflicts of interest because they have cropped up so often among the entities involved in the case now before the PUC.

Fryeburg Water Co., which serves Fryeburg and East Conway, N.H., is unusual in that it is a privately held water utility. (About 15 percent of the nation’s water utilities are privately held.) It was founded in 1883, but by the 1990s the majority of the shares were held by members of the Hastings family, whose patriarch, Hugh Hastings, has served as company president since 1969 and as an officer since 1950.

Recognizing that Fryeburg had excellent water — the result of quartz-rich geology and clean, copious runoff from the Presidential Range in the White Mountains — Hastings hoped some could be profitably sold to bottlers. But in the interest of fairness, the PUC prohibits utilities from selling water to any entity at a higher price than it charges its ordinary customers, so Hastings and a business partner, Eric Carlson of the engineering firm Woodard & Curran, came up with a workaround.

In 1997, Hastings and Carlson created a company, Pure Mountain Springs, that bought water from the utility at its ordinary rate and sold it to Nestle Waters at a much higher — but undisclosed — rate. Pure Mountain Springs was headed by Hugh’s son, John, who shared ownership with Carlson. PUC filings show Hugh Hastings maintained power of attorney over his son for the first five years of the company’s operation.

Between 2003 and 2007, previous PUC proceedings revealed, this pass-through entity had revenues of $3 million and paid Fryeburg Water Co. $700,000 in rents and water fees. Hastings wrote in 2004 that the initial capital financing was “over $100,000.”

“Fryeburg’s water had the right geological recipe for Poland Spring,” said Mark Dubois, Nestle Waters’ Maine-based natural resource manager. “But it also had entrepreneurs who saw the spring and invested in their business and started selling that water to us. Here was a willing seller; we were a willing buyer.”

Cliff Hall, a longtime opponent of Nestle’s operations who served on Fryeburg’s Board of Selectmen from 2007 to 2010, takes a dimmer view of the situation. “They set up a nepotistic arrangement which bypassed the (utilities) laws that say if you take an excessive amount of money, you’re supposed to reinvest it in infrastructure,” he said. “It seems to me this was a dummy company set up … to take the money and put it back in the Hastings’ trust.”

Others share these concerns. “A public utility is supposed to do the best they can for the customers, the public and the municipality,” adds Bill Harriman, one of four Fryeburg-area residents who have formally intervened in the current PUC case. “And if you look at what these guys were doing back then, they weren’t looking out for the people of Fryeburg.”

PREDICTABLE CASH FLOW

This arrangement ended in 2008, when Nestle stepped in and bought Pure Mountain Springs, allowing it to purchase bulk water at the going rate, currently about one-tenth of a cent per gallon.

Welch, then at Pierce Atwood, advised the company on the deal. Simultaneously, Fryeburg Water Co. gave Nestle its contractually required five-year notice that it wanted to renegotiate their relationship, setting the stage for the current case before the PUC.

Under the proposed contract, Nestle will continue to draw water at a low “tariff” rate and pay lease fees to the water company, but will make a guaranteed minimum payment of about $144,000 every year, ensuring a more predictable cash flow. Nestle Waters’ payments account for about 40 percent of the company’s operating revenues.

“What we were looking for was stability in our revenues and a long-term contract that helps us make long-term capital improvement planning going forward,” said Fryeburg Water Co. Vice President Jean Andrews. “This way we know what is coming in. That’s really beneficial for us because (currently) it fluctuates so much based on weather conditions and the economy.”

Nestle Waters likes the agreement because it gives the company long-term access to the springs in Fryeburg’s Wards Brook aquifer, where its trucks fill up at a pumping shed. Currently the tanker trucks carry the water to Poland Spring bottling plants in Poland, Hollis, and Kingfield, but Nestle officials say a 25-year agreement could help the company build a plant in Fryeburg. The company employs about 800 people in Maine, although none work full-time at the Fryeburg sites.

“We want to continue to grow and make investments in Fryeburg and investments in Maine, and we can’t do that on two-, three-, four- and five-year contracts,” said Nestle’s Dubois. “We need stability in our business, and we really feel like the long-term arrangement allows us to chart a course for the future.”

That’s fine with many in Fryeburg who regard Nestle Waters as a fair partner, a clean industry whose presence has kept water rates low and has given to numerous causes in town, from heating assistance for the poor to a new gymnasium for the local high school, Fryeburg Academy.

“Here in Maine, Poland Spring and Nestle act responsibly,” said Dick Krasker, a retired owner of two local summer camps who has been active in local water issues. “They respect the sustainability of the resource and have absolutely no intention of overusing or abusing it. They’re very generous to our town, and they have been hugely advantageous to the customers of the water company, whose rates are some of the lowest and who get some of the best water in the world.”

Indeed, independent monitoring results suggest Nestle’s average annualized pumping of 200,000 to 300,000 gallons a day is not adversely affecting the water table, which has risen in recent years because of unusually high rainfall. (Nestle is allowed up to 600,000 gallons a day.) Krasker, who several years ago helped raise money for the town to contract for ongoing monitoring, an independent hydrological survey and and environmental impact assessment, said there has been “zero” impact.

“None at all,” he said. “You could either use this water Poland Spring is pumping or it would flow into the Saco River.”

Nestle and Fryeburg Water dismiss concerns that their relationship could ever cause local customers or wells to run out of water. In 2008, Nestle made a written pledge to the town selectmen that existing residential customers “have priority over Poland Spring,” a principle enshrined in the proposed contract. “There are short- and long-term suspension clauses, and we’re first in line to be shut off before other users in the town,” Dubois said.

Nestle Waters is first in line for cutoffs, but it’s not alone. The proposed contract stipulates that such action “shall be for no greater duration, and to no greater extent, than (Fryeburg water) suspends or reduces water sales to its commercial and industrial customers.”

Some residents question the arrangement and mistrust the motives of Nestle SA, whose global CEO, Peter Brabeck, has repeatedly argued that water is not a human right, apart from the 6.6 gallons per day he says a person needs for hydration and basic hygiene. Water used for other purposes must have “a price,” he has said regularly, in order to spur necessary infrastructure investments needed to conserve a precious resource he predicts the planet will run short of long before oil.

“The commodification of water is an enormous problem, especially when you are creating new markets (for bottled water) in places where people already have potable water,” said Nickie Sekera, a human rights activist who lives in Fryeburg and opposes the new contract. “If you look at what’s happening on a global scale with droughts and population growth, I am hugely concerned about any long-term agreement. Anything over five years I think is grossly irresponsible and misguided.”

TOO CHEAP A PRICE?

But the argument that appears to be getting the greatest traction in the PUC deliberations is that the Fryeburg Water Co. might be selling water to Nestle too cheaply. Until 2008, Nestle was willing to pay Pure Mountain Springs a price many times higher than the tariff rate, the argument goes, so it should continue to do so in the future.

“I’m not against profit, but this money here goes back to pay for infrastructure and to reducing rates for mainline ratepayers,” said resident Bruce Taylor, who is an intervener in the case and has subpoenaed Nestle to reveal the rates it paid Pure Mountain Springs for water before it bought the entity in 2008. “I think it would be exceedingly helpful to commissioners so that they can make a wise and informed decision.”

The deputy public advocate said his office is interested in the idea, and that under state law the water company could establish a higher tariff for large-volume consumer users. “It can be done, and it does not necessarily have to be done here” in the current proceedings, Black said. “You could change the tariff for commercial customers independently of this case, either because the PUC orders it or because Fryeburg Water Co. decided on its own to accept an ascending rate that would change the amount Nestle pays.”

Fryeburg Water has not considered this option, Andrews said. “I know things have been suggested by other parties, but our rates are structured based on cost of service, so that is not something we have explored,” she said.

Dubois said it was an “interesting concept” but noted that his company had to invest to buy Pure Mountain Springs, and in facilities and aquifer protection land in Fryeburg. “It’s a little short-sighted in that the rate itself doesn’t account for business principles in the return on investment and the like,” he said.

He added that Nestle owns the pumping station and pipes at Fryeburg and uses untreated water, so Fryeburg Water Co.’s cost to deliver it is essentially free. “Our payments are free and clear to the company,” Dubois said. “We don’t want to be singled out. We want to be treated like any other customer.”

FIXING A THORNY PROBLEM

If Tuesday’s proceedings do wind up focusing on the Pure Mountain Springs era, Chairman Welch will likely be under additional pressure to recuse himself, as he worked closely with Nestle on related issues. He said he would make a decision whether to remove himself after the hearing. If he does leave, he said the PUC would be unable to approve the proposed contract for lack of a quorum.

“I get that it’s a real issue, a tough issue,” he said. “I will have to make a hard call.”

In October, the chairman decided not to disqualify himself, in part because if he did the PUC would no longer have a quorum to act. “Consequently,” he wrote at the time, “my participation is … compelled by the so-called ‘rule of necessity.’ ” He also wrote that he would not be biased by the personal relationships he had at Pierce Atwood.

Several people familiar with the PUC say they believe Welch has good intentions. “I think Chairman Welch appears to be a very reasoned jurist,” said Taylor, whose attorney filed a second recusal motion last month. “But I am concerned about the appearance of conflict of interest and the transparency of process.”

Sean Mahoney, executive vice president of the Conservation Law Foundation, which testified in support of Welch and Schneider at their respective confirmation hearings, said the Nestle case is indeed a conundrum for Welch.

“I personally think Tom is somebody of integrity, but a lot of people looking from the outside are going to say something doesn’t smell right, and that’s a problem,” Mahoney said. “When you’re in that position you have to be whiter than the driven snow, particularly in issues fraught with a lot of emotional and other baggage. So I think he is in a tough spot.”

Colin Woodard can be contacted at 791-6317 or at:

cwoodard@pressherald.com

This story was updated at 1:10 p.m. Sept. 3 to correct the order and number of past Maine public advocates. There have been five, in this order: Gordon Weil, Peter Bradford, Paul Fritzsche (previously with Pine Tree Legal Assistance), Stephen Ward and Richard Davies.

 

The Reporter editorial: Delta Plan misses main point

Vacaville’s The Reporter printed the following editorial that reinforced some of the arguments we have been making against the ill-conceived Bay Delta Plan,, although the proposed solution of desalinization is not a good one:

Editorial: Delta Plan Misses Main Point

The Bay Delta Conservation Plan took a dramatic turn last week, acknowledging some of the concerns of Delta farmers by re-routing a proposed massive tunnel system to affect a smaller area and stay mostly on public land.

That the concerns of those who live in and rely on the Delta are being acknowledged as valid is a welcome change of pace. But the whole process still sidesteps the main point: It is folly to keep trying to take water from where it occurs naturally and send it to places where it doesn’t.

Southern California and the Central Valley are, by nature, deserts. Trying to keep them lush and fertile by relying on dwindling supplies of Delta water disregards the lessons of Mother Nature.

For a prime example, look no further than the Owens Valley, which decades ago was raided of its water by Los Angeles. Today, Owens Lake has become a lake bed and Mono Lake is a mess because more water continues to be taken out than can be replenished.

If less snow in the Sierras and less rainfall in general is a trend, it seems probable that the Delta will have less water flowing into it than in the past. The idea that it can be tapped in the same way as it has been — or even more so — bodes badly for its ecological health.

It’s time to stop trying to siphon off Delta water and start focusing on other ways of getting water where it’s needed. Start with conservation. Those who live in a desert shouldn’t expect to have grassy green lawns or grow water-intensive crops.

Desalinization — removing salt from seawater — is another promising option, given the state’s long coastline. Yes, it’s still prohibitively expensive, but if more effort were put into developing it, the price would come down.

And what about developing more water storage, so that the rain that does fall can be captured before it runs into the ocean? In recent years, some have proposed building underground storage systems rather than dams, and that seems like a great idea. But building a pair of 30-mile-long, $25.7 billion tunnels to divert water around the Delta does not.

Senate President Pro Tem Darrell Steinberg was right on Friday when he said that the new route for the tunnel system announced last week doesn’t get at the fundamental problem.

“What really needs to be discussed and resolved are the operating conditions for the Delta over the next five decades,” Steinberg said.

The Legislature needs to re-engage, he says, and make sure all of the key players have a voice in what happens.

It’s also critical to have the nonpartisan Legislative Analyst’s Office study the project. It’s the public’s best chance for an objective assessment of costs and benefits — if there are any.

Peak water in the American West

In an excellent blog on scienceblog.com, Peter Gleick argues that the plethora of stories of droughts, dropping reservoir levels and irrational water engineering projects point to the need to:

  • acknowledge that we’ve reached peak water in the American west. We have promised more water to users than nature provides. Until demand and supply are brought back into balance, groundwater levels will continue to drop and our rivers will continue to run dry, destroying natural ecosystems.
  • Agree that there are limits to new supply and that we must turn to the demand side of the problem. This means figuring out how to use water more efficiently and productively, and thinking about moving some water-intensive activities and products to more water-abundant regions. Maybe it is time to grow less rice, alfalfa, cotton, and pasture with flood irrigation. It is past time to retire the green lawn as an acceptable landscape option in arid climates. All toilets and washing machines should be water- and energy-efficient.
  • Stop assuming that the water available for future use is the same as in the past. Climate change ensures that it won’t be, but until politicians start to heed the warnings of climate scientists and the on-the-ground evidence of the current water situation, our water problems in the west, and elsewhere, will worsen.

Read the full blog here: http://scienceblogs.com/significantfigures/index.php/2013/08/19/peak-water-in-the-american-west/
Photo by flickr user (cc) TimPearce.

Acid joins water as contaminants in planned fracking boom

An article by David Baker in the San Francisco Chronicle, Acidizing could rival fracking in the Monterrey Shale, has pointed to a growing practice of using powerful acids to dissolve rock and free petroleum within. In addition to the high volume of water that is frequently used, it poses yet another dangerous risk to groundwater from contamination. As usual the companies refuse to reveal what acids are used and how. Continue reading

Let the river flow: victory for indigenous people and salmon

By Terry Winckler: There are few victories sweeter and more dramatic than the one just wrested by Earthjustice attorney Jan Hasselman and his tribal allies in a Fresno, California courtroom last week. They did nothing less than save an entire run of chinook salmon from a corporate grab of the water needed by those fish to survive their spawning run up the Klamath/Trinity rivers system.

The drama–and believe me, it was a mix of theater, unexpected turnarounds, and life-or-death arguments–climaxed late yesterday when a judge agreed that these salmon need the water more than the mega-farms which wanted it as a hedge against next year’s bottom line.

Dozens of Native America tribal members demonstrated outside the courtroom as U.S. District Court Judge Lawrence O’Neill heard the warning of what happened 12 years ago during a drought year like this on that same river system. That year, a water grab authorized by the Bush administration left as many as 70,000 salmon dead in the rivers, with the next generation rotting in their bellies.

Years later, those rivers were empty of salmon, as were the larders of tribes along the river, and the future of the commercial/recreational fishing industry that depends on healthy salmon runs. The collapse of the fishery was so severe that California and Oregon declared formal states of emergency, and Congress appropriated $60 million in disaster relief for fishermen.

The spectre of the 2002 disaster and scientific testimony that showed it could happen again this year convinced Judge O’Neill to let the Trinity River flow into its natural bed, rather than allow its diversion hundreds of miles south to Central Valley mega-farms.

If it sounds like a no-brainer, consider what Hasselman, the tribes and the fishing industry were actually up against. The courtroom in Fresno is right in the heart of corporate farming territory. Those business interests, which are politically powerful in California and pretty omnipotent in that particular part of the state, are what Hasselman faced off against. They wanted that Trinity water to ultimately flow through Fresno County into their back pockets–and initially the judge sided with them last week by granting a temporary restraining order on releasing water.

But here’s the real bottom line…Hasselman et al prevailed, and because of that, in the next few weeks one of the biggest chinook salmon runs on record will race up the re-invigorated Trinity/Klamath rivers with a much-better chance of giving life to the next generation.

The case will continue to wind its way through the courts, with important implications for the government’s authority to protect salmon in other years and in other places. Nor are this year’s salmon assured of success. So stay tuned as we follow the fish home.

P.S. Read our press release for quotes from the court and our allies on this great day for Pacific Northwest salmon: http://action.earthjustice.org/site/R?i=DwHxMw48m3ikK_RDBz8MzA