On July 31st the Barrett Zoning Board decided at their hearing that Buck Hill’s appeal to be able to sell their water is upheld. The ruling by Barrett’s Zoning Officer to not allow the sale was overturned. This decision was based on legal rationale and case law which support state Public Utility Commission regulations superseding local ordinances. The vote was 2 to 1, with Richard Price and Ralph Fish voting for the appeal to stand and Jill Shoesmith voting against.
The next step in the process will require Buck Hill Water Company to submit a development plan to both the Monroe County Planning Commission and to Barrett for review in meeting Barrett’s Subdivision Land Development ordinances. However, it is unclear if any disapprovals would be legal given the rationale for the decision described above.
After the Monroe County Planning Commission and Barrett receive the development plans, they have 30 days to review. The review process could take longer given extensions in time given to address concerns. And the date of submission of a development plan from Buck Hill Water Company is not known. Given this, the approval process could take months or even years.
In attendance at the meeting were Barrett’s Zoning Commission members listed above, Supervisor Bill Pipolo, Sewage Enforcement Officer Jeryl Rinehart, candidate for Supervisor Patti O’Keefe, a representative of Brodhead Watershed Association, and about 20 residents.
- Ethel Huff
Canadensis, PA
Comment from Local Realtor
"I (was unable to) attend but my opinion is that this is not a good idea for our area for so many reasons especially traffic and roads.
There is only so much water. In our experience we have seen many wells run dry and we cannot take a chance for our homeowners."
Update 6/19/17 - Letter from Concerned Citizen (Ethel)
Hello Neighbors,
The Buck Hill Falls (BHF) Water Sale Proposal Appeal was heard at a Zoning Commission Hearing held on 6/12. In attendance were about 35 residents in addition to our Zoning Commission members (Richard Price, chair, Ralph Fish, member, Jill Shoesmith, member, Alan Price Young, Esq.), Supervisors Loree Guthrie and Bill Pipolo, Supervisor candidate Grant Hilfiger, Zoning Officer Jeryl Rinehart, one attorney each for Barrett Township and Buck Hill, Mike O’Shea (President and COO of Buck Hill Falls Company and President of its subsidiary BHF Water Company, Brick Linder (engineering consultant for Buck Hill), and Shawn McGlynn (zoning consultant for Barrett).
The focus of this meeting was on legal issues, not environmental impact, logistics, road repair costs or other issues. If this proposal passes the Barrett Zoning Committee, it will then pass to the Planning Committee and then to the Supervisors. However, depending on the decision, either Barrett or Buck Hill may decide to appeal which could delay progression through this process. Attorney Alan Young will receive briefs from the two attorneys on July 10th at his office. The decision will be announced at the next public meeting on July 31 at 6PM at the Barrett Municipal Building. However, at that point the decision will have been made.
And what are the legal issues?
- Is water sale to a retailer in bulk a “new” or “accessory” sale? Accessory sales are allowed from primary water sources but not from a secondary water source and not for “new" uses. There is question as to whether the 'Big Spring' to be used for the sale of water is a primary or secondary source of water and whether bulk sales are a “new" use.
- If ruled a valid “accessory" use, does BHF have the right to “bulk” sales? State regulators have previously given them the right, and BHF has used that right once to provide water for the demolition crew razing the Buck Hill Falls Inn.
- Do state regulatory agencies trump local zoning ordinances? Although our local zoning ordinance prohibits a new use or enlargement of buildings, the PUC (Pennsylvania Utility Commission) has allowed bulk water sales for other water companies and the BHF Water Company.
TESTIMONY
Mike O’Shea, President of BHF, explained the Department of Environmental Protection (DPA) has approved 25 million gallons of monthly usage for the BHF Water Co. The Delaware River Basin Commission (DRBC) has approved 15 1/2 millions gallons, and BHF uses abut 20% of that latter volume. That leaves about 12 million unused gallons per month which flow downstream. Mike feels that bulk water sales would not impact BHF conservation land or water rates which would remain stable or possibly decrease.
Mike states other Pennsylvania water companies are allowed to sell bulk water including Broadhead Creek’s water utility, and Niagara Water has been contacted regarding this possibility. No mention was made of Nestle. Mike explained that at this point in the process no environmental studies have been conducted nor business plan started.
Brick Linder, civil engineer and consultant for BHF, described how Big Spring feeds into the primary BHF water supply creek which both feed together into the BHF’s water holding tank, and he believes bulk sales are incidental or “accessory” to household water use. It was clarified that the PUC began regulating BHF before local zoning ordinances came into effect, and that the BHF tax deed shows the two creeks are on the same parcel. The original deed was considered too confusing to interpret.
Shawn McGlynn, Barrett’s zoning consultant, states piping is not regulated by Barrett Zoning; however, buildings are. He believes that bulk water sales are a new not an existing use and then read portions of Section 304 of Barrett’s Zoning ordinances which specifically states no enlargement of building(s) is permitted. If a use is not identified as approved, then it is not approved. Section 10.03 of the zoning code explains that if a building is on a new parcel, it is considered a new collection facility, and the BHF proposal calls for a new water pumping facility on a new parcel.
But key to this case — Attorney Alan Young added he believes that Barrett’s zoning ordinances may be unenforceable because of the seniority of state regulatory actions approving bulk sales.
RESIDENT COMMENTS
John Smith, President of the Broadhead Water Association, is against any water being drawn from the watershed which is not returned. He believes that draw-down will increase water temperatures and increase organic pollution leading to death of fish and their food.
Frank May agrees with John Smith on all counts. Frank May, a resident of BHF with his wife Ginny, recently was honored with the Rose Schock Award from the Kettle Creek Environmental Fund for his exemplary work in environmental education and protection. Frank explained that any BHF creek water volume, aquifer, and hydrogeology studies are at least 30 years old, and that approved BHF lots would likely double the current BHF use of water. Downstream conservation areas would also be impacted by lower water levels and higher temperatures.
Ginny May explained that she used to use creek water for a local community garden. However, the Creek was very low last year; and because Springs have run dry, she must now truck in water. Climate change has definitely impacted local conditions.
Nate Covington asked for a change in our local zoning ordinances to disallow such water withdrawals and use of tanker trucks on Barrett roads. Attorney Young then explained those legal changes are best addressed by the State government in Harrisburg.
About 8 other residents voiced their feelings including the need for more updated hydrogeological information on water volume flows and usage, concern over potential dry wells, tanker truck noise, road repair costs, and downstream damage.
FUTURE PROCESS FOR RESOLUTION
When a decision is announced on July 31, an appeal may then be filed which will delay resolution. If the proposal is approved by the Zoning Commission and Barrett does not appeal, the proposal may then proceed through the Planning Commission and then to the Supervisors.
One possible alternative which could save money and time for both parties is to agree to dialogue in which both parties needs are recognized, respected, and valued. Buck Hill Falls, an important Barrett asset, needs additional revenue and owns a valuable resource which may have excess capacity. Barrett Township residents who already pay high township taxes may need to pay more for road repair, would see and hear more heavy trucks on their roads, and bear the risk of potential impact on their wells. Barrett and downstream users could experience an impact on fish, wild-life, and water quality.
It seems some Barrett residents would desire an updated hydrogeologist study to determine what is the current volume, usage, and excess capacity for current BHF homeowners. Calculation of the additional capacity needed if all unsold BHF lots had functioning homes and an inhabitable structure replaced the BHF Inn would also be desirable. This study would then conservatively assume the highest water use for BHF, and hopefully Niagara could absorb the cost of this study.
Barrett would also need to determine the number of trucks (and size) acceptable to the town given potential road repair cost, noise, and visual pollution. This determination would cap the level of excess capacity which could be transported out of BHF by truck. Incremental Barrett expenses could be covered through a revenue sharing agreement with BHF or a road tax. This is not an unusual procedure in extraction industries.
During this process environmentalists should be included in the dialogue regarding the agreed-to level of draw-down.
This dialogue process could be initiated by the Barrett Supervisors by creating and managing an ad-hoc committee perhaps of two BHF residents, two Barrett (non-BHF) residents, one or two environmentalists, and one impartial Barrett resident. None of us really enjoys compromise. But it sure is helpful in addressing all of our residents needs as best as possible when crafting a solution.
This idea is presented only to help you consider what process you think would be most productive in achieving the best resolution for all Barrett residents and downstream neighbors. Surely some of you will develop better ideas for a process for resolution which could then be discussed with our Supervisors (or organized separately). And your thoughts are the most important ones.
The purpose of these emails is to help keep neighbors informed of current events impacting their communities. If you would prefer to remove your name from this email list, it is easily done and no problem. Please let us know at the email listed below. Thank you, and hope this information is helpful.
Respectfully,
Ethel Huff
Canadensis, PA 18325
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Update 6/13/17 - Letter from Concerned Citizen (Nate)
The Zoning Board hearing was last night, 6/12/17.
It was revealed that Buck Hill Falls Water Company has been in discussions with Niagara Bottling Company for selling bulk water... trucking it out of town to be bottled and sold.
Other Tidbits:
- The Buck Hill Water system connects with the Mountainhome water system (Aqua). There is a pipe that connects behind the Mountainhome Bowling Center. The valve is currently closed, but Buck Hill Falls Water Company could theoretically provide water to Mountainhome instead of Aqua.
- The Barrett Township Supervisors' solicitor, Todd Weitzmann, is unable to participate in the proceedings due to a conflict of interests. The Barrett Supervisors had to hire a different attorney to represent Shawn McGlynn, our outside consultant (zoning officer).
I was able to submit my $0.02 during the Zoning Board meeting public comments.
I am including them here, for public review:
I was alarmed when I started thinking about tanker trucks driving through town, hauling away our most important natural resource... for profit.
I think this is a slippery slope. If you give one permit to extract water, then you'd have to let anyone get a permit, and since there's money on the line, we'll pump this mountain dry.
I recall a recent meeting where someone in here at a Supervisor meeting said that even though there was rain just a day or two prior, that the woods was at that point extremely dry and they may have even issued a burn ban.
Nobody knows what will happen if we start pumping water out of the ground. Some folks say there is no chance this mountain ever runs dry. Hopefully we never have to find out.
What I'm suggesting is once we figure out the correct call on the "zoning" for this meeting, we proceed and make new ordinance. One that prohibits the extraction of water from any source for non-personal use.
- Nate Covington
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Update 6/12/17- Letter from Concerned Citizen (Ethel)
Update 6/12/17 - Letter from Concerned Citizen
Hello Neighbors,
A reminder that the Zoning hearing on the Water Extraction Proposal in Buck Hill is scheduled for tonight, June 12th at 6PM. I want to keep an open mind. However, after discussing a very similar recent proposal by Nestle with an official in Eldred Township, it seemed helpful to share the information supplied for your evaluation. It is as follows:
ELDRED TOWNSHIP
Nestle proposed to draw 150-200,000 gallons daily from a local privately owned well which meant 40,000 gallon trucks would transverse their small town about 2 times an hour, 16 hours a day, 365 days a year. And this level of traffic would increase significantly if shipments were held up on previous days due to inclement weather. Since Nestle was operating not as a bottler but as an extractor, no jobs would have been created, no incremental taxes collected, and there was no benefit for the town. In addition to higher road repairs and noise, 30 homes within the 1/2 mile well-head protection zone would have new restrictions on their property such as no geo-thermal use or livestock.
The spring drains eventually from creeks into the Lehigh River, and the Delaware River Commission (the licensing authority) stated that the draw would be safe at 500,000 gallons daily. Since Nestle’s own study showed a decrease of 12% in water volumes, local citizens were not confident residents downstream would be protected especially in drought conditions. This in addition to no positives for the township led the citizens to fight the acceptance for over a year; and after that time Nestle withdrew their proposal.
Nestle had proposed leasing rights for 15 years with two 5-year extensions. The official stated that although Nestle guarantees their operations, Nestle has never admitted to any guilt when problems arose. When a 3-day draw test was administered in one location, a neighbor who had never had problems with their well complained of sulphur smell. Nestle stated that can happen but was not Nestle’s fault.
Three years before informing the township of its intent, Nestle had started water testing, application submission, and indirectly guided zoning changes. And a township with a budget of $1 million had to spend $100,000 on attorney and hydrogeologist fees for a project with no positive benefit for their town. Their local water authority actually purchases large acreages of land to draw water for long-term use of its residents, and citizens perceived Nestle would be leasing water rights with no permanent commitment to the community.
WASHINGTON TOWNSHIP/PEN ARGYL
In all fairness we should identify situations where Nestle or other water retailers have had a positive impact on the community. Washington Township has had an ongoing relationship with Nestle, and an official with Washington Township says she believes the Board is satisfied with the relationship. She will contact the Board members next week and call back with further detailed information.
In neighboring Pen Argyl, the town manager stated they get the truck traffic which runs through their town about every 7 minutes from the Washington Township wells. Although it impacts their roads, they get no ongoing financial benefit. Occasionally Nestle will make small donations and a representative does stop by to ask if there are any issues. When the Eagle Scouts approached Nestle, Nestle contributed towards a local Scoreboard. As soon as additional info is received, it will be distributed.
SO WHO REALLY OWNS OUR WATER?
The Federal government, except no federal policy has ever been produced regarding extraction of water. In fact the government has given Nestle permission to drill on national land.
Respectfully,
Ethel J. Huff
Canadensis, PA 18325
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Update 6/8/17 Letter from Concerned Citizen (Ethel)
Hello Neighbors,
Previously Buck Hill Falls Company had applied to Barrett Township to pump water from a Buck Hill spring into tanker trucks for retail sale. That application was denied by Barrett’s Zoning Officer. On Tuesday night, June 6th, the hearing scheduled for Buck Hill’s appeal regarding its application was postponed and is now scheduled for Monday evening on June 12th at 6PM at the Barrett Township Municipal Building. At the upcoming meeting both Buck Hill management and Barrett’s Zoning Officer (and their attorneys) will present information supporting the application and its denial. This hearing is the first step in the approval process and is for only a Zoning Committee decision. If the Zoning Committee approves it, the application would then need to be approved by Barrett Township’s Planning Committee, Township Supervisors, and all pertinent regulators. It was stated that there is a possibility the application could be approved by the Zoning Commission (the first step) at the June 12th hearing.
Barrett Township has included information on the township web-site regarding Buck Hill's application, and this communication is appreciated. However, many residents are still unaware of this application, and those who have heard are concerned regarding the potential impact on local wells and water needs downstream. The Zoning Committee explained that information regarding the impact on the local aquifer had not been submitted with the application. And we are not sure if this information is in fact even required to be submitted as part of the application process.
The Zoning Committee attorney, Alan Price Young, Esq, explained that the Zoning Committee decision will center on a legal interpretation of whether the water pumping is from a “primary” water source. Buck Hill is applying for “accessory” use, and “accessory" use has generally been approved when water is drawn from primary water supplies. However, the water source being pumped here would be from a secondary source of water (a spring) in Buck Hill. So there is a legal question as to whether “accessory" use can be applied to a secondary water supply.
Some Barrett Township residents stated they understand that Buck Hill would like to add a new revenue stream to help defray their operating expenses. However, they are concerned about:
1) the volume pulled from the spring and its potential impact on local wells, aquifers and downstream users in Barrett Township and
elsewhere. This includes concern about wells possibly going dry.
2) the visual impact of a water holding tank, pumping station, and the incremental number of trucks traveling local roads.
Buck Hill wants to resolve concerns with friendly discussion, and we also hope these concerns can be addressed to everyone's satisfaction at Monday night’s meeting.
To add more legal terms to insure your eyes will completely glaze over, public comment is more limited than at a Supervisors meeting. If you are considered a legal “party” you may comment during the meetings. A “party" is a Buck Hill shareholder or a person who can show direct interest via a “proximate” location. If there is a question as to whether you qualify as a “party", a letter from an attorney is advisable. If not a legal “party”, you may comment, but you may be limited to speaking before or after the hearing. If you wish to comment and have your comments included in the official proceedings, your comments are considered “testimony” rather than “comment”.
Members of the Zoning Committee include:
Rich Price, Chair
Ralph Fish, Member
Jill Shoesmith, Member
Allan Price Young, Esq, member
Hopefully we’ll learn more on Monday night about all the facts in this situation as well as clarifying further the application process.
Respectfully,
Ethel and Tom Huff
Canadensis, PA 18325
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Public Notice - Public Hearing
PUBLIC NOTICE - PUBLIC HEARING
The Zoning Hearing Board of Barrett Township has scheduled a public hearing in the Barrett Township Municipal Building in Cresco, Pennsylvania on June 6, 2017 at 6p.m, for consideration of an Appeal from a Decision of the Zoning Officer involving a permit denial.
The Applicants, Buck Hill Falls Company and Buck Hill Water Company, seek a determination under the Barrett Township Zoning Ordinance that a water filling station is an accessory use to an existing water supply operation of the PUC-regulated water company.
The location of the proposed accessory use is west of Route 191 in proximity to an existing raw water pipe that ultimately supplies the Buck Hill Falls area in Barrett Township, Pennsylvania. The property contains 1568.13 acres with tax parcel identification number 1637800165668. The property is owned by the Applicants; is located in the Conservation (C) Zoning district, and is improved with certain water supply system infrastructure. The Applicant intends to construct a water filling station on the property for tanker trucks.
Notice of this public hearing is given in accordance with the Barrett Township Zoning Ordinance and the Pennsylvania Municipalities Planning Code, as amended.
Richard L. Price, Jr., Chairman
Ralph Fish, Jr., Member
Jill Shoesmith, Member
Barrett Township Zoning Hearing Board
Alan Price Young, Esquire
Barrett Township
Zoning Hearing Board Solicitor
Young & Haros, LLC
802 Main Street
Stroudsburg, PA 18360-1802
Nestle: Here We Go Again?
Update: Barrett's Zoning Officer / Consultant Shawn McGlynn was personally involved in Eldred Township "battle" against Nestle.
A similar incident happened locally in Polk Township, when Nestle tried to bottle water for their Deer Park brand. Residents in Polk Township came together to fight off the "corporate investment." We in Barrett must evaluate the situation and decide for ourselves.
Further Reading:
