On Tuesday, the Sterling Board of Selectmen will hold an open forum to discuss the proposed deal between Nestle and the town of Clinton. Nestle wants to draw water from the Wekepeke aquifer, transport it from a station in Sterling to their plant in Framingham, and sell it as a Nestle branded bottled water. Sterling should oppose the plan and take action to stop it, but the town should do it the right way.The right way is to oppose the plan on the grounds that is likely illegal, and take Clinton to court if necessary to have the law interpreted and enforced. The wrong way is to threaten Nestle with all sorts of crazy and unenforceable demands, as the local advocacy group "Concerned Citizens of Sterling" outlined in their recent meeting.
Clinton was given the right to draw water from the Wekepeke parcel in 1882 by an act of the legislature. The act stipulated that Clinton could take water "to take the waters of Wekepeke Brook, in the town of Sterling or any reservoir theron," subject to the terms of an 1876 law that established the Clinton Water Works. That law enabled Clinton to "...supply itself and its inhabitants with pure water to extinguish fires, generate steam, and for domestic and other uses..."
This should be the ground on which Sterling fights.
Whether or not Nestle is allowed to purchase the water rights from Clinton and pump water out of the aquifer should be based on an interpretation of these provisions. Ultimately, I think it will take either a ruling from a court or an act of the legislature to clarify these points (and there is no way the legislature is going to get involved, since Clinton and Sterling share a State Rep. and State Senator. It would be suicide for either Rep. Naughton or Rep. Antonioni to take a side).
It seems to me that Sterling should have a good case that the Nestle plan is illegal. First, Nestle has stated that it plans to pump water from newly-dug wells. It must do so in order to to market the water as "spring water." But the 1882 act specifically references taking water from the brook or its reservoirs, not by pumping from a well. The question then becomes whether or not it is implied that a well would be allowed, or whether omitting a reference to pumping from a well is intentional, and thus prohibited.
I would think that a detailed search of similar acts of the legislature and/or precedent-setting court cases should answer that question. If the legislature had specifically granted another municipality permission to pump water from a well, then Sterling could make a strong argument that by omitting that method of extraction from this specific act, the legislature was not authorizing it. (Similarly, if the legislature had never specifically designated underground sources and Clinton could prove that the courts had ruled that drawing from the ground and from the surface were essentially the same, they would win this argument).
Secondly, the 1876 act establishing the Clinton Water Works specifically references "Clinton and its inhabitants." It seems to me that the current Nestle plan would not pass muster under this provision. Nestle wants to pump the water through the existing water main to a facility they would build on route 12 in Sterling, where tanker trucks would fill up and take the water to the bottling plant. It seems clear to me that if the water is being taken from a facility in Sterling, then it is not supplying Clinton's "inhabitants."
I had a discussion last month with a Clinton-based journalist who asked me if it would be any different if the Clinton plan were to pump the water all the way to Clinton for use by a Clinton business. While the impact on Sterling would still be the same, if Nestle were to build a facility in Clinton and pull the water out of the ground there, as an entity with a facility in Clinton doing business in Clinton, I would say that the water would be used by one of Clinton's "inhabitants" and that use would probably be legal. But if the water is pulled by a business whose facility is in Sterling, with the water never entering Clinton, it is not being used by "Clinton and its inhabitants" and seems to me to an improper use.
I think Sterling has an excellent case if they were to try to fight the plan. Nestle knows this and isn't stupid, so they will attempt to cut a deal with Sterling where the town allows them to pump the water for some sort of mitigation (read: money) and the promise not to take them to court. But the town shouldn't entertain serious discussions with Nestle until they start the process of determining whether or not they can stop the project altogether. They certainly shouldn't start talking about a list of demands, financial considerations, etc. In fact, the town shouldn't be dancing with Nestle at all at this stage, since our disagreement over the use of the land is with the town of Clinton, not with Nestle.
This is where the "Concerned Citizens of Sterling" are threatening to get in the way.
At their meeting last week (which I regrettably was unable to attend), the Concerned Citizens unveiled their list of demands that Nestle should be required to meet in order to do business in Sterling. According to the Telegram & Gazette, they are:
Good Grief! This is where I lose patience with most advocacy groups. More often than not, it seems that groups like this one (and recently the anti-Wal Mart "Lancaster First") employ a kitchen sink strategy where they throw everything they can at the wall, no matter how outlandish, in hopes that they can get something to stick. When any advocacy group starts coming up with outlandish reasons to oppose a plan, they end up losing credibility and undermining what would otherwise be a noble cause. In this case, the "Concerned Citizens" list of demands are almost uniformly absurd. Let's break them down:
- That the water not be sold internationally because of a risk that international trade agreements could negate local control over the amount of water withdrawn from the reservoirs.
- That water pumping be limited to between 7 a.m. and 7 p.m. weekdays, with no pumping on the weekends.
- That the company provide residents with irrevocable guarantees that if their well production is reduced by 30 percent or more, the company will replace the well.
- That the company buying water thoroughly repair the dams at Wekepeke before water extraction begins.
- That the company extracting and purchasing water give Sterling a one-time non-refundable payment of $5 million for Sterling’s agreement that the necessary permits be granted, plus 50 percent of the amount the company would pay Clinton.
That the water not be sold internationally because of a risk that international trade agreements could negate local control over the amount of water withdrawn from the reservoirs. Talk about a head-scratcher. Let's erect a sign at the town line stating "Welcome to Sterling, enforcer of international treaties and agreements." Perhaps the UN could rent out a storefront on Main Street to police these multinational corporations that want to bypass our laws. I can't think of a better way to say "hey, we're a bunch of amateurs here" than to make a demand based on "international trade agreement."
That water pumping be limited to between 7 a.m. and 7 p.m. weekdays, with no pumping on the weekends. First, the pumping isn't going to make a lot of noise out in the woods and essentially underground or in a concrete pump house, so limiting pumping hours doesn't seem to have any real effect on the quality of life among the Wekepeke's neighbors. I assume the point is to keep the trucks off of Route 12 except during these times. My father, who is much more in tune to the issues of real estate development having been a developer at one time, asked incredulously "Wouldn't they want the trucks to be running at night, since limiting them to the daytime would mean the traffic would be increased at the busiest time of the day." He makes a ton of sense.
That the company provide residents with irrevocable guarantees that if their well production is reduced by 30 percent or more, the company will replace the well. Nestle has stated that they will guarantee the health of the wells of abutters, having them spell this out more clearly makes some sense. I agree with the "Concerned Citizens" here, although Nestle might object to the specific terms outlined here.
That the company buying water thoroughly repair the dams at Wekepeke before water extraction begins. The upkeep of the dams is Clinton's responsibility, not Nestle's. Clinton has already stated that they will use some of the fees the claim from Nestle to repair the dams. I'm not sure we can dictate the timing of the repairs.
That the company extracting and purchasing water give Sterling a one-time non-refundable payment of $5 million for Sterling’s agreement that the necessary permits be granted, plus 50 percent of the amount the company would pay Clinton. The discussion of an exact sum of money completely undermines everything the Concerned Citizens claim to be for. It suggests that while they stand on principle, they would be willing to set those principles aside for a price. Notwithstanding that the sum of five million dollars is crazy. If I were Nestle and that was going to be the deal, why not just cut a check to Clinton for $4.9 million, buy the piece outright, and do business as a Sterling-based company. I'll bet we don't have bylaws that prohibit this sort of thing. (I realize that it is probably more complex than I've just made it sound and that's probably not a viable option). Were I Nestle, I'd see this demand either as proof that the Concerned Citizens are just posturing and have no intent of dealing with the company constructively, or that they are so out of touch that it's no use for Nestle to deal with them at all.
After everyone has had their say on Tuesday, the Selectmen should resolve to oppose the Nestle plan vigorously on the basis that it is likely not a permitted use, and they should implore the Concerned Citizens to stand down so that we can defeat the proposal the right way.
Tags: Massachusetts Clinton Sterling Nestle Wekepeke
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