Wekepeke: Here we go again

I suppose it was inevitable. After a summer and fall or relative peace surrounding the Wekepeke Reservoir, Clinton Selectman Anthony Fiorentino has decided that it might be time to revisit the issue again. From this week’s Times and Courier:

Clinton - Anthony Fiorentino remains concerned with how Sterling views the Wekepeke lands, even as that town’s selectmen chairman says his constituents want action taken sooner rather than later.

“We’re left with trying to get a deal with the town of Sterling to try and collaborate and trying to maintain that property as it should be,” said Fiorentino, a Clinton selectman, citing Gov. Deval Patrick’s 2008 mid-year veto* of $250,000 in state money earmarked to repair Wekepeke dams. The state had earlier mandated that Clinton repair the dams, an estimated $1 million job.

Fiorentino said Tuesday he remains in favor of exploring new ways to generate revenue on the 564-acre Wekepeke parcel, owned by Clinton but largely located within the town of Sterling.

“I look at water as a renewable resource. The Wekepeke is something that we need to explore and not forget about,” he said, adding, “The town of Sterling has expressed interest in that water. The town of Clinton needs to protect that. It should be something we actively consider.”

This issue is never going to go away as long as the leaders of Clinton and Sterling see the water on that land as a money-making venture. Every last bit of “renewable resource” has not been placed on this earth so that it can be exploited and sold to bridge the budget gaps. It’s OK for a piece of property to be left dormant. Open space is a good thing.

It’s bad enough that some of the leadership in Clinton see the Wekepeke Reservoir and aquifer as nothing more than a money maker. But the Sterling Selectmen have been little better in voicing their opposition to Clinton’s plan. Long after Clinton rejected Nestle’s initial bid the Sterling selectmen finally decided that yeah, well, maybe selling the water wasn’t such a great idea so we’ll oppose it.

Opposing the plan when it was still a going question would have been the responsible thing to do, but Sterling’s selectmen dragged their feet to see what Sterling could get out of the deal, only to finally oppose it after a decision had been made and after months of near-unanimous opposition from those in town who voiced an opinion.

But when it comes to deciding what to do with the land, the Sterling selectmen have been all over the place. I don’t blame Fiorentino for thinking Sterling has designs on the reservoir, because this board of selectmen has tossed out a number of ideas on what to do with it. They’ve talked about hydro-electric power, forestry management (i.e., logging), and leaving it alone among other ideas. The fact that the Sterling selectmen can’t come up with their own proposal and stick to it understandably leads to distrust.

Ultimately, the only option that will gain widespread support in Sterling is to keep the land as it is and to upkeep the dams. No commercial development, period. Earlier in the year the Sterling selectmen mused about what it would take to buy the land. My proposal at the time was to purchase the land from Clinton for the same amount Clinton would have received had it contracted with Nestle, minus the $1.5 million to repair the dams, payable over the terms of Nestle’s original proposal. But I and others would strongly oppose even that plan if Sterling were to try to turn around and develop it.

The first step to solving the problem is for the Sterling Selectmen to strengthen their opposition to Nestle by extending it to all commercial and revenue generating activities. The parcel has been a passive, open space for over 40 years. It should stay that way.

*As an aside, the $250,000 was not cut by the governor’s veto, but as part of a round of Section 9C cuts. State law mandates that the governor reduce the budget in an effort to balance it if revenues come in below budget. A veto can be overridden, a 9C cut cannot. The governor did not veto the earmark when it was passed as part of the FY2009 budget.

July 3: Naughton's Wekepeke earmark in final budget
June 19: Write the state house to support the Wekepeke
June 19: Clinton signs Wekepeke restriction. Now what?
May 2: Naughton secures funds for the Wekepeke
April 29: Might the Wekepeke restriction have teeth after all?
April 25: What would Sterling accept at the Wekepeke?
April 11: What does the Wekepeke Restriction actually say?
April 11: Clinton does the right thing
April 9: Sterling should offer to buy Wekepeke at Nestle's price
April 6: Sterling selectmen to oppose Wekepeke plan, but to what extent?
April 4: Vermont looking to restrict Wekepeke-style projects
March 27: This can't be helpful
March 25: Tough decision ahead for Clinton
March 21: Nestle's proposal could change everything
March 21: Nestle nominated for "Corporate Hall of Shame"
March 19: Sterling Selectmen disappoint at Wekepeke forum
March 16: Sterling should oppose Nestle...the right way

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

Naughton's Wekepeke earmark in final budget

Thanks to Representative Hank Naughton, Senator Steven Brewer and anyone who lobbied on its behalf, Naughton's $250,000 proposal to help with dam repairs and other upkeep at the Wekepeke survived the conference committee and will be headed to the governor's desk.

The only remaining hurdle is the governor's line item veto. Unless Governor Patrick strikes the line from the final budget and the legislature sustains his veto, the Department of Conservation and Recreation will have the money to spend. Here's the earmark (page 53 of the budget):

...provided further, that not less than $250,000 shall be expended for the purpose of aquatic management for the Wekepeke Reservoir in the town of Sterling

In the last two weeks, Clinton has agreed to the Conservation Restriction on the property and the state has come through with money to help maintain the property. After a lot of discussion and even a few hurt feelings, the Wekepeke land remains free from commercialization and a public resource for the communities of Sterling and Clinton.

Previous coverage of the Wekepeke:
June 19: Write the state house to support the Wekepeke
June 19: Clinton signs Wekepeke restriction. Now what?
May 2: Naughton secures funds for the Wekepeke
April 29: Might the Wekepeke restriction have teeth after all?
April 25: What would Sterling accept at the Wekepeke?
April 11: What does the Wekepeke Restriction actually say?
April 11: Clinton does the right thing
April 9: Sterling should offer to buy Wekepeke at Nestle's price
April 6: Sterling selectmen to oppose Wekepeke plan, but to what extent?
April 4: Vermont looking to restrict Wekepeke-style projects
March 27: This can't be helpful
March 25: Tough decision ahead for Clinton
March 21: Nestle's proposal could change everything
March 21: Nestle nominated for "Corporate Hall of Shame"
March 19: Sterling Selectmen disappoint at Wekepeke forum
March 16: Sterling should oppose Nestle...the right way

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

Write the state house to support the Wekepeke

Budget negotiations are underway in the state house to determine which items from the house and senate budgets will make the final bill sent to the governor for his signature. One of the items in the house budget that is up for negotiation is the $250,000 appropriation for repairs to the dams and general upkeep of the Wekepeke reservoirs.

I believe that the appropriation will be an important step toward repairing the dams and will take some of the pressure off the town of Clinton, which needs to find $1 million or so over the next few years to bring the dams up to snuff.

If you agree with me, please contact the members of the conference committee. They are:

Senator Steven C. Panagiotakos
Senator Stephen M. Brewer
Senator Michael R. Knapik
Representative Robert A. DeLeo
Representative Viriato Manuel deMacedo
Representative Marie P. St. Fleur

Here is the text of the email I sent to each member earlier this week:

Dear [Senator/Representative],

I am writing to ask for your support of an item in the House budget proposed by Representative Harold Naughton which would appropriate $250,000 the upkeep and repair of dams at the Wekepeke Reservoir in Sterling. Please consider including the item, included in line 2800-0100 of HR4701 (page 76), in the final bill that comes out of the joint committee.

The appropriation is crucial to the towns of Leominster, Lancaster, and Sterling in the Wekepeke watershed. Were the dams to fail, citizens and businesses in these towns could be affected by flood waters downstream of the Wekepeke Reservoirs. Appropriating the funds proposed by Rep. Naughton would allow dam repairs to begin and provide necessary protection to those citizens and businesses.

The town of Clinton owns the reservoirs and the land on which they are located, and they are responsible for the upkeep of the dams. Because of the proposed cost, Clinton has discussed selling water rights to commercial bottling operations. The impact of commercial operations in the Wekepeke are unknown, but citizens are concerned that their wells could be affected, the finest native brook trout breeding area in the state could be ruined, and area residents could lose passive recreation opportunities. Including the funds proposed by Rep. Naughton would provide the town of Clinton the resources necessary to begin repairing the dams, protecting the Wekepeke watershed by removing the need for Clinton to raise the money through commercial pursuits.

Thank you for considering the appropriation for the Wekepeke dams.

Previous coverage of the Wekepeke:
June 19: Clinton signs Wekepeke restriction. Now what?
May 2: Naughton secures funds for the Wekepeke
April 29: Might the Wekepeke restriction have teeth after all?
April 25: What would Sterling accept at the Wekepeke?
April 11: What does the Wekepeke Restriction actually say?
April 11: Clinton does the right thing
April 9: Sterling should offer to buy Wekepeke at Nestle's price
April 6: Sterling selectmen to oppose Wekepeke plan, but to what extent?
April 4: Vermont looking to restrict Wekepeke-style projects
March 27: This can't be helpful
March 25: Tough decision ahead for Clinton
March 21: Nestle's proposal could change everything
March 21: Nestle nominated for "Corporate Hall of Shame"
March 19: Sterling Selectmen disappoint at Wekepeke forum
March 16: Sterling should oppose Nestle...the right way

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

Clinton signs Wekepeke restriction. Now what?

According to this morning's Telegram and Gazette, the Clinton Board of Selectmen finally signed the Wekepeke conservation restriction a mere seven years after town meeting approved it. In an uncharacteristic show of benevolence, the Clinton board is actually going to let someone else see it:

[Chairman Kevin] Haley said the conservation restriction on the Wekepeke, Clinton’s former public water supply, would be made available for the Sterling selectmen.

As I've argued previously, the Clinton board has been stretching the Open Meeting Law to it's limits by holding these deliberations in executive session. For all we know, the restriction could be as limited as prohibiting people from driving clown cars around the reservoir (although other indications suggest it probably has more teeth than that).

(If I lived in Clinton, I think I'd be quite frustrated at the board's penchant for operating either in executive session or without public comment. According the article in this morning's T&G, the board adjourned the meeting last night without allowing any of the 25 or so citizens who had attended to comment on the Rauscher Farm issue. At least in last night's case, citizens spoke out against the adjournment to the press after the meeting; in the secrecy surrounding the conservation restriction, I'm not aware that any Clintonian challenged the board's loose interpretation of the Open Meeting Law.)

According to last Friday's Clinton Item, one of the sticking points on the Conservation restriction has been the question of whether or not Clinton would be able to use the Wekepeke as a public water supply in the event Clinton needs the water at some point in the future. In an effort to address Clinton's concerns, Sterling selectman Paul Sushchyk responded in Tuesday's paper that the Clinton board has nothing to worry about:

Sushchyk said Sterling residents are against any commercial water pumping operation at the Wekepeke. Last year, Nestlé Waters of North America began looking into striking a deal with Clinton for the water at the Wekepeke. This created a great deal of controversy before being rejected by the Clinton Board of Selectmen. Sushchyk said Nestlé would have had to come before Sterling for a zoning change at the Wekepeke. However, he said Clinton would not need to get permission from Sterling to draw the water for municipal use.

“Those are two different things,” Sushchyk said. “I don’t think anyone has a problem with Clinton drawing water for its own use. That is clearly what the aquifer is for.”

I don't know that Selectman Sushchyk accurately describes the feelings of the people in town. Whether or not anyone in Sterling would have a problem depends on the meaning of the word "draw."

If by "draw," Sushchyk means Clinton can take water out of the surface reservoirs as outlined in the acts of 1876 and 1882, the Selectman is probably right. Few if any Sterlingites would have a problem with Clinton using the waters of the Wekepeke for the purpose it was originally set aside.

But if "draw" means pumping water from the underground aquifer, there would likely be opposition (including from Sterlingites like me). While a plan whereby Clinton pumped water from the aquifer for municipal use would be closer to the original use than the plan to turn the water over to Nestle, it still would be a different method of extraction than originally approved. One of the bases for opposing the Nestle plan was that pumping from the aquifer was not an allowed use, only extraction from the surface waters was permitted.

That's why the wording of Sushchyk's comment to the Item is troubling. Back in February, then Clinton Selectman Robert Pasquale asserted "We own the aquifer." He was widely criticized; while Clinton clearly owns the reservoirs and the land surrounding them, the aquifer is much, much larger than the Wekepeke land and provides water to homeowners and wells in both Lancaster and Sterling.

Hopefully Sushchyk was misquoted when he suggested that the aquifer is "clearly" for Clinton's use. That is a position that few Sterlingites would support.

Previous coverage of the Wekepeke:
May 2: Naughton secures funds for the Wekepeke
April 29: Might the Wekepeke restriction have teeth after all?
April 25: What would Sterling accept at the Wekepeke?
April 11: What does the Wekepeke Restriction actually say?
April 11: Clinton does the right thing
April 9: Sterling should offer to buy Wekepeke at Nestle's price
April 6: Sterling selectmen to oppose Wekepeke plan, but to what extent?
April 4: Vermont looking to restrict Wekepeke-style projects
March 27: This can't be helpful
March 25: Tough decision ahead for Clinton
March 21: Nestle's proposal could change everything
March 21: Nestle nominated for "Corporate Hall of Shame"
March 19: Sterling Selectmen disappoint at Wekepeke forum
March 16: Sterling should oppose Nestle...the right way

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

Might the Wekepeke restriction have teeth after all?

A couple of weeks ago, I questioned the terms of the proposed Wekepeke conservation restriction being negotiated between Clinton and the state and wondered why the Board of Selectmen would be holding their deliberations in secret. According to today’s Telegram and Gazette, the doors will be opened on May 7:

CLINTON— It’s a dilemma that has dogged officials here for months: Should a conservation restriction be placed on the Clinton-owned Wekepeke reservation in Sterling so Clinton can get a $353,600 state grant to help lower a $2.7 million debt exclusion approved last year for the Rauscher Farm property in Clinton?

In a special meeting yesterday morning, the selectmen decided to air the question to the public at the May 7 selectmen’s meeting.

Because the discussions have been held in secret (dubiously, in my opinion), information about the Wekepeke restriction has been hard to come by, but a couple of little nuggets in today’s piece suggest that the state may be trying to put some real teeth into the restriction.. First, from Selectman Kevin Haley:

“Things have changed,” Mr. Haley said. “If we can’t even use that property, it could be a burden to the town with upkeep year after year. We need to find out exactly what it can be used for. And at this point, do you want to tie your hands even more with a conservation restriction?”

Haley appears to be worried that those of us in Sterling with too much time on our hands might actually have been right when we argued that a Nestle-style proposal would not have been a permitted use in the first place. But then he adds that the restriction would “tie [Clinton’s] hands even more.”

What would be more restrictive than not being able to use the water for commercial purposes? Not being able to build out the land at all? Not even being able to develop the land for a golf course or other commercial recreational development? Could the state be pressuring Clinton to preserve the parcel for open space? It looks like that might be the case. Donald A. Lowe, director of the Clinton Community and Economic Development Office, provides another hint:

“It seems like there is little the town can get out of [the Wekepeke] rather than open space.”

Which was the whole point of the conservation restriction when it was first proposed in 2001: to protect the Wekepeke as open space. The question facing Clinton is whether or not it is worth it for Clinton to protect open space in Sterling so that it can pay to acquire and preserve open space in Clinton.

The selectmen should approve the restriction and signal their support for preserving open space wherever it lies.

Previous coverage of the Wekepeke:
April 25: What would Sterling accept at the Wekepeke?
April 11: What does the Wekepeke Restriction actually say?
April 11: Clinton does the right thing
April 9: Sterling should offer to buy Wekepeke at Nestle's price
April 6: Sterling selectmen to oppose Wekepeke plan, but to what extent?
April 4: Vermont looking to restrict Wekepeke-style projects
March 27: This can't be helpful
March 25: Tough decision ahead for Clinton
March 21: Nestle's proposal could change everything
March 21: Nestle nominated for "Corporate Hall of Shame"
March 19: Sterling Selectmen disappoint at Wekepeke forum
March 16: Sterling should oppose Nestle...the right way

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

What would Sterling accept at the Wekepeke?

In an editorial in yesterday's edition, the Times & Courier muses about possible uses at the Wekepeke and whether or not any use other than the status quo would be acceptable to Sterling. An excerpt:

Following closely on the heels of the unanimous vote to reject Nestlé was a unanimous vote to clarify the town’s legal control over the 564 acres and the waters they contain. Some possibilities: using the reservoirs for Clinton. Selling water to some other town. Breaching the dams. Selling house lots.

Some of these proposals would elicit vehement opposition in Sterling, for the same reasons the Nestlé deal did. Many Sterlingites would like to see the Wekepeke remain as it’s been for years: an unused water supply, protected from development and available for passive recreation.

Let's take the last point first. Sterlingites would like to see the status quo; it is the best deal for the town and its people. Clinton has to upkeep the land, repair the dams, and for the last 44 years has left the water in the Wekepeke reservoirs untouched as they have been taking water from the Wachusett. What's not to love about that set up?

But keeping the status quo isn't realistic, since Clinton doesn't have the money to repair the dams as mandated by law. Perhaps Representative Naughton will be successful in this year's attempt to secure state funding for the repairs, but it seems like a long shot considering the state's economic situation. (One could argue that if Clinton had been taking care of the dams on a regular basis over the last 44 years this wouldn't be an issue, but that's water over the dam, if you'll pardon the terrible pun). So let's look at the options mentioned in the Times & Courier and try to determine how Sterlingites would respond:

Using the reservoirs for Clinton. This was the original use of the reservoirs going back to the late 1800s. If Clinton were to begin drawing surface water again to supplement the water they take from the Wachusett, they would certainly be within their rights to do so. A daily draw of hundreds of thousands of gallons would lower the levels of the reservoirs, and I would expect that Clinton would restrict some uses (pets, boating, swimming or wading) to protect the purity of the water supply, but no Sterlinigte would have grounds to oppose that usage.

Selling water to some other town. While some in Sterling might balk at the idea (the original 19th century laws refer to the water being for "Clinton and its inhabitants"), there is a long history in the state of intermunicipal water agreements. Leominster Mayor Dean Mazzarella would love to have the Wekepeke as a back-up water supply. There is something nearly perfect about Leominster contracting with Clinton to take water out of Sterling, since it jives perfectly with Mazzarella's trend of disrespecting and disregarding Leominster's neighbors for Leominster's benefit. Even so, the impact would be no different than if Clinton used the water for itself, and such a proposal shouldn't be seriously opposed by Sterling.

Breaching the dams. This proposal would be controversial, but in the end I don't know how much opposition it would generate in Sterling. On the one hand, it would dramatically change the landscape. The reservoirs would be gone, it would take years for the land that was revealed to regenerate, and there would likely be significant costs associated with both the breach of the dams and the subsequent clean-up: there is probably 120 years of assorted debris and trash at the bottom of the reservoirs that would be exposed and need to be removed. And the town of Lancaster might have major issues with this proposal since the Wekepeke's only choke point would be at the Bartlett Pond at the bottom of Ballard Hill. The pond floods Route 117 once or so each spring as it is even with some semblance of flood control upstream with the current dam system. I wonder how often that route would be closed if all of the water from the brook backed up at Bartlett Pond every time it rained.

On the other hand, breaching the dams and returning the Wekepeke Brook to it's early-19th century flow would be the closest thing to true conservation imaginable. Environmental and conservation groups across the country have been advocating for the removal of dams and the restoration of waterways to their original flow. At the Selectmen's forum in Sterling last month, a representative of the Nashua River Watershed Association mentioned the removal of the dams as a possible solution they would support. This solution would call the bluff of any Sterlingite who opposed the Nestle project on environmental grounds (pollution, noise, plastic bottles, etc.). What could be more environmentally pure than this?

Selling house lots. Of the proposals, this is the only one that would (or should) elicit "vehement opposition in Sterling." It is also the possibility that is the most remote. In the end, I don't think Clinton would have the right to sell the land for development under state law, since it was allowed to purchase the land for a specific use and development wasn't it. Also, the possibility of developing the land may be off the table shortly if Clinton finally enacts a Conservation Restriction (not that anyone knows what might be in it). Further, it's not clear how much of the land is developable: Sterling does not have town sewer and much of it may be too wet for septic. And breaching the dams in an effort to build house lots (an idea I find absurd, but the Times & Courier included in its online poll, so someone must think it's viable) might be problematic, since wetlands usually have to be replaced if they are drained for development. Would Clinton just flood a different part of the land?

Ultimately, I would like to see the towns work together to preserve the land for recreation, either by finding a way to repair and maintain the dams or by returning the area to its natural state. That would cost Sterling some money, but it would be worth it. Further, I would like to see us work together to improve the land for recreation. Blaze some hiking trails, make it easier to drop a canoe or kayak in the water, maybe clear a spot for a few picnic tables...turn it into a municipal park and invite everyone to come. Let the Parks and Rec Commissions of both towns jointly maintain the area.

I've heard and read some comments that Clintonians don't get any benefit from the land because they don't use it. Well by all means, come on up. Bring your families to hike and explore. We want Clintoninans to visit us. How do you think Sterling can support three ice cream stands and mini golf and a petting farm and multiple pick-your-own orchards among other businesses? Because Clinton doesn't have any of those things so Clintonians come to Sterling to buy ice cream and play putt-putt. Believe me, it's in our interest to have Clintonians use the Wekepeke for recreation and stop at the Sterling Ice Cream Bar or Rota Spring on the way home to cool off with a frappe or a float.

Wouldn't it be nice to see the towns come to an agreement on preserving the Wekepeke? Sterling Selectman Sheppard and Clinton Selectman Pasquale could stand together, cut the ribbon to the Wekepeke Peace Park, then lock arms and lead the crowd in a stirring rendition of "Friends are Friends Forever" as happy families take to the reservation to hike it's trails and relax in it's shade?

Whoa, the heat must be getting to me. I think I'm the one who needs to get to Rota Spring to cool off...

Previous coverage of the Wekepeke:
April 11: What does the Wekepeke Restriction actually say?
April 11: Clinton does the right thing
April 9: Sterling should offer to buy Wekepeke at Nestle's price
April 6: Sterling selectmen to oppose Wekepeke plan, but to what extent?
April 4: Vermont looking to restrict Wekepeke-style projects
March 27: This can't be helpful
March 25: Tough decision ahead for Clinton
March 21: Nestle's proposal could change everything
March 21: Nestle nominated for "Corporate Hall of Shame"
March 19: Sterling Selectmen disappoint at Wekepeke forum
March 16: Sterling should oppose Nestle...the right way

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

What does the Wekepeke restriction actually say?

Even though the Clinton Board of Selectmen has voted unanimously to reject Nestle’s Wekepeke proposal (and you know it had to be a bad proposal for it to be rejected by a 5-0 vote…Clinton could resolve that the sky is blue and it would only pass by a 3-2 margin), there are still important questions facing the board that will affect the future of the Wekepeke.

Foremost is the question of the Conservation Restriction, which needs to be worked out in the next few weeks if Clinton is to receive $353,000 in grant money to help preserve Rauscher Farm. From the Item:

Selectmen entered into closed executive session to discuss a conservation restriction on the Wekepeke. Clinton and the state have an unfinished deal on the table and both sides have agreed to finalize it. Clinton gets ownership of 17 acres of land next to Mossy Pond from the state. The state gets a conservation restriction on the Wekepeke....

In 2004, the state legislature approved creating a conservation restriction. The state said, with the restriction in place, “the town of Clinton retains the rights to use water in the Wekepeke watershed lands as a potential water supply for the town.”

This and every other article I have seen on the issue refers nebulously to “a conservation restriction” without actually specifying what the conservation restriction says. I have searched “the Google” and come up empty; I’ve looked on the town website and found nothing; I’ve checked the state Division of Fisheries and Wildlife site and drawn blanks. Which begs the question: What is in the Conservation Restriction?

Some evidence in the local press suggests that whatever is in the CR, it has been changed due to the questions that have arisen in the discussion around the Nestle proposal. Take this note from Tony Marini’s column in the October 3 Times & Courier:

The story behind this conservation restriction is too involved to be discussed in this column, but it should suffice to say that the language of the restriction has been changed in a manner such that Clinton will be allowed to fully realize the future potential of this valuable town resource. The state now is in possession of the modified conservation restriction, and the Department of Conservation and Recreation promised prompt action to ratify this agreement.

Why should it suffice? Tell us what the changes are. For that matter, if there have been changes tell us what the draft said before the Nestle controversy. I can’t find any document stating one way or the other, and since the Board of Selectmen routinely goes into executive session when discussing the restriction, I guess no one really knows for sure. Isuppose Marini may have information about the restriction, considering that he is a vocal supporter of both the Rauscher purchase and of the three members of the Board of Selectmen who make up its majority on the bulk of the town’s issues. Was his comment on the CR an informed one?

Why does the board goes into executive session to discuss the CR? As far as I can tell, a discussion of a Conservation Restriction is not one of the nine reasons that a public board can go into executive session. Only one of the nine reasons even remotely applies:

Exception Six - "To consider the purchase, exchange, lease or value of real property, if such discussions may have a detrimental effect on the negotiating position of the governmental body and a person, firm or corporation."

This exception recognizes that public discussion of negotiations might increase the eventual price paid by the government. As with the collective bargaining and litigation exception, the governmental body must show that an open meeting might have an adverse impact on the body's negotiating position with a third party.

But the Board of Selectmen is not discussing any issues that would "increase the eventual price paid by the government." Clinton isn't paying anything. I don’t see where the Board has a basis to meet behind closed doors. It only takes three registered Clinton voters to force the Selectmen to either open the CR meetings or show cause for why they should be held in executive session…are there not even three Clintonians who want to know what is going on with the CR?

In any event, unless someone forces the Board to "show that an open meeting might have an adverse impact on the body's negotiating position with a third party," we are left to guess at the terms of the CR. Right now, we only know what the Conservation Restriction could be. The 2004 act that authorized the conservation restriction states (relevant sections quoted, emphasis mine):

SECTION 2. The town of Clinton may convey fee interests, easements or lesser interests in land through conservation restrictions under sections 31 and 32 of chapter 184 of the General Laws in certain lands it owns in the towns of Sterling and Leominster....

SECTION 3. The purpose of these land transfers is to ensure the preservation and protection of wildlife and habitat, and for passive recreation and consistent purposes. The parcels known as the Wekepeke Watershed Lands were taken or acquired by the town of Clinton and used for watershed and water supply purposes. The conservation restrictions authorized herein shall allow for the continuation of such purposes on all or a portion of the parcels, however the conservation restrictions may restrict or regulate, but not unreasonably limit, the acts or uses associated with conducting such purposes....

SECTION 4. The town of Clinton retains the rights to use water in the Wekepeke watershed lands as a potential water supply for the town.

A lot has been made about Section 4 (the paragraph from the Item at the top of this post appears verbatim in a number of their stories on the subject, they clearly just cut and paste it from one article to another); Section 4 is self explanatory (although it doesn’t suggest whether or not a Nestle-style plan would fall under a “potential water supply for the town." Opponents say it doesn’t.). Section 3 suggests that the conservation restriction “may restrict or regulate, but not unreasonably limit,” those “water supply purposes.” Would a prohibition on a Nestle-style plan unreasonably limit Clinton? It’s not specified.

But while Sections 3 and 4 are important and relevant, Section 2 is also important since references the General Laws in defining what activities can be permitted or limited under the definition of a conservation restriction. Here is the section referenced in the act (bullet format added for clarity):

A conservation restriction means a right…to permit public recreational use, or to forbid or limit any or all

• (a) construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground,
• (b) dumping or placing of soil or other substance or material as landfill, or dumping or placing of trash, waste or unsightly or offensive materials,
• (c) removal or destruction of trees, shrubs or other vegetation,
• (d) excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral substance in such manner as to affect the surface,
• (e) surface use except for agricultural, farming, forest or outdoor recreational purposes or purposes permitting the land or water area to remain predominantly in its natural condition,
• (f) activities detrimental to drainage, flood control, water conservation, erosion control or soil conservation, or
• (g) other acts or uses detrimental to such retention of land or water areas.

So what are the terms of the CR? Is it simply to "permit public recreational use" but not restrict any other activities? Did the earlier drafts forbid or limit construction, or the removal of vegetation, or excavation? Would “activities detrimental to…water conservation” or the “retention of…water areas” have be prohibited? If so, is the Clinton Board of Selectmen using their executive sessions to change the restriction “in a manner such that Clinton will be allowed to fully realize the future potential of this valuable town resource”?

The Clinton Board of Selectmen should hold these deliberations in public so the townspeople can see the terms of the agreement, and so they can see if the agreement has been changed due to the discussions with Nestle.

Previous coverage of the Wekepeke:
April 11: Clinton does the right thing
April 9: Sterling should offer to buy Wekepeke at Nestle's price
April 6: Sterling selectmen to oppose Wekepeke plan, but to what extent?
April 4: Vermont looking to restrict Wekepeke-style projects
March 27: This can't be helpful
March 25: Tough decision ahead for Clinton
March 21: Nestle's proposal could change everything
March 21: Nestle nominated for "Corporate Hall of Shame"
March 19: Sterling Selectmen disappoint at Wekepeke forum
March 16: Sterling should oppose Nestle...the right way

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

Clinton does the right thing

The Clinton Board of Selectmen did the right thing Wednesday night, voting unanimously to reject Nestle’s bid to draw water from the Wekepeke in order to bottle and sell it commercially. From the Item:

CLINTON — Facing mounting opposition from Sterling residents to any and all commercial water pumping at the Wekepeke Reservoir, and unsure of the legal and financial fallout of such pumping, the Board of Selectmen voted unanimously Wednesday night to reject a water pumping proposal from Nestlé Waters of North America....

Selectmen also voted unanimously to have interim Town Solicitor Robert Gibbons begin looking into the legal rights the town has regarding the Wekepeke.

“We want to know everything,” [Board Chairman Robert] Pasquale said. “Our rights to sell the Wekepeke, to use the water, to sell the water. We want a definition of what rights Clinton and its inhabitants have regarding the reservoir. We know we need to keep it on the back burner as far as maintaining the property and repairing the dams. We thought the offer would be more lucrative to the town than it was. Who knows, a year down the road we may look at it again.”

The key here is the decision by the board to further investigate the legal issues surrounding the Wekepeke. Some of us who are opposed to the plan believe that it will ultimately be found to be illegal under state law and/or local zoning. I have been arguing all along that Sterling should oppose the plan on these grounds and others with the same opinion have threatened legal action.

If the questions that attorney Jim Gettens and others raised were part of Clinton’s decision to slow down a bit and investigate the legal issues before agreeing with Nestle, then Gettens and the Clinton Board both deserve credit for their actions. The Sterling selectmen also deserve credit for coming out against the proposal before Clinton made a decision, to whatever extent that opposition helped Clinton come to their decision.

Of course the issue isn’t settled, it’s just been set aside so that it can be studied a little further. And other activities in Clinton will continue to have an impact on the future of the Wekepeke. The people of Sterling should continue to be vigilant in ensuring that our interests continue to be represented. Hopefully we can work together with Clinton to resolve the issue as the tension between two towns begins to ebb.

Previous coverage of the Wekepeke:
April 9: Sterling should offer to buy Wekepeke at Nestle's price
April 6: Sterling selectmen to oppose Wekepeke plan, but to what extent?
April 4: Vermont looking to restrict Wekepeke-style projects
March 27: This can't be helpful
March 25: Tough decision ahead for Clinton
March 21: Nestle's proposal could change everything
March 21: Nestle nominated for "Corporate Hall of Shame"
March 19: Sterling Selectmen disappoint at Wekepeke forum
March 16: Sterling should oppose Nestle...the right way

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

Sterling should offer to buy Wekepeke at Nestle's price

There is a solution to the brewing dispute over the Wekepeke parcel in Clinton: Sterling should buy the parcel for exactly the same terms that Nestle proposed.

It could be a win-win for everyone: Clinton gets the same payments that they would receive if they contract with Nestle, Sterling gets the land, and no one gets to spend months and months in court.

OK, maybe not a win-win for everyone. Nestle wouldn’t get anything, but they can probably afford the status quo.

Nestle’s proposal would pay Clinton approximately $280,000 per year for 30 years. It also includes an additional $100,000 in year one for dam repairs and $20,000 in years 2-6 for dam maintenance. Over the course of the contract, Nestle would pay Clinton $8.6 million. That’s apparently the value of the land to Clinton over the next 30 years.

Sterling should offer to purchase the land from Clinton for $8.6 million, with the payments spread out over 30 years. Essentially, Clinton would hold a 30-year zero-interest mortgage on the land, with Sterling making payments to Clinton. Sterling should propose to make those payments along the same schedule at Nestle would:

$380,000 in year 1
$300,000 in years 2-6
$280,000 in years 7-30

But the land also comes with a liability. Clinton is required by state law to repair and maintain the reservoirs’ dams. The cost of repairing those dams is estimated at $1.5 million. Under the simple proposal above, Clinton would still be responsible for dam repair as they are under the Nestle plan. If Clinton wanted to pass the cost and responsibility of the dam repairs back to Sterling, it could be done by lowering the price to $7.1 million. A different pay schedule would have to be negotiated; here are a couple of ideas.

Since the Nestle proposal assumes that the dams would be repaired in the first six years of the project, Sterling could argue that the $1.5 million rebate should be given in years 1-6, which would essentially result in low or no payments to Clinton over the first six years, followed by full payments over the final 24:

$ 0 in years 1-4
$100,000 in year 5
$280,000 in years 6-30

In this scenario, there is no financial gain for Clinton in the short term, except that Clinton relieves itself of the liability associated with the potential failure of the dams.

Another scenario might have Sterling making 30 equal payments of $236,666, but that would leave Sterling with the problem of trying to come up with the money to repair the dams on top of the payments to Clinton.

A compromise scenario to allow Sterling the flexibility to raise money for dam repair and still provide some revenue to Clinton might be negotiated to look something like this:

$100,000 in years 1-5
$264,000 in years 6-30

There are still other issues to be decided. The Conservation Restriction that Clinton negotiated with the state is still waiting to be signed. If Clinton were to sell the land to Sterling, I would expect that it would sign the CR and claim the $350,000 grant the state has promised for the purchase of the Rauscher Farm. It might be in Sterling’s best interest for the CR to go unsigned if the land were sold, so Sterling could negotiate its own CR with the State and perhaps receive grant money to help repair the dams. Either way, Clinton should demand that a CR be part of the deal so that Sterling didn’t then turn around and try to develop the land for itself (which would be wrong and would likely touch off a brutal fight in town).

Also, where would Sterling get the money? I don’t know, but if the town were to enter an agreement to buy the land from Clinton, I would hope that the Sterling Land Trust and other environmental and recreational organizations would help raise money to purchase and preserve the land.

But those are all details that could be worked out. The Sterling and Clinton Boards of Selectmen should seriously consider this proposal and make a deal that would serve both towns’ interests.

Previous coverage of the Wekepeke:
April 6: Sterling selectmen to oppose Wekepeke plan, but to what extent?
April 4: Vermont looking to restrict Wekepeke-style projects
March 27: This can't be helpful
March 25: Tough decision ahead for Clinton
March 21: Nestle's proposal could change everything
March 21: Nestle nominated for "Corporate Hall of Shame"
March 19: Sterling Selectmen disappoint at Wekepeke forum
March 16: Sterling should oppose Nestle...the right way

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

Sterling selectmen to oppose Wekepeke plan, but to what extent?

The Sterling Board of Selectmen finally announced their official position on Nestle's proposal to purchase water from Clinton. They are opposed:

STERLING — Despite being wooed by Nestlé Waters of North America, and advice from special counsel Mark Bobrowski, the Board of Selectmen will lead the town in a fight against any and all commercial pumping operations Nestlé attempts to set up at the Wekepeke Reservoir.

“We decided we’re going to oppose Nestlé,” Selectman Richard Sheppard said. “We don’t especially want to see a large scale operation here that could in the future grow.”

I commend the board for deciding to lead the effort to oppose the plan. I'm a little surprised that the Selectmen took this position--since they had assumed a hands-off stance at the open forum in Sterling last month--but I'm happy that those of us who disagree with the proposal now have the backing of the Selectmen.

While the Selectmen have now come out against the plan, it's still unclear what steps they are willing to take in opposition. How exactly do they plan on opposing the plan? Are they going to actively work against it? Or are they going to just speak against it?

I fear that it will be more of the latter than the former. From the Telegram & Gazette:

[Selectman Paul Sushchyk] noted, however, that it would be premature for Sterling to take any legal action at this time. “Until Clinton does one thing or another with the water, we don’t have the controversy to take steps toward litigation.”

Selectman Richard A. Sheppard concurred, saying drawn-out litigation involving the large company would be a financial burden Sterling cannot afford.

I'm concerned with both of these points. Those of us who believe the plan should never get off the ground because state law does not allow it would like to see the town to get a ruling on the law now, as opposed to waiting to fight the plan after it has begun. If it's not permitted under state law, then there is no reason to even entertain a discussion on the specifics of this or any other plan.

It seems to me that the easiest route to a ruling would be to sign on to the petition of Attorney James Gettens, who has already filed a brief with the Attorney General, but it was pretty clear at the open forum that the Selectmen don't want anything to do with Gettens's action. But beyond that, the position of the board is apparently not to do anything until after Clinton makes a move. I think that is a mistake.

While Selectman Sheppard may be correct that a long court fight may be too expensive for the town, wouldn't it be a better strategy not to admit that? Effectively, the position seems to be "We're against it, but we're not going to fight round 1 and we're not going to be able to pay to fight in later rounds."

So how effective is the board's position? Only time will tell.

Previous coverage of the Wekepeke:
April 4: Vermont looking to restrict Wekepeke-style projects
March 27: This can't be helpful
March 25: Tough decision ahead for Clinton
March 21: Nestle's propsal could change everything
March 21: Nestle nominated for "Corporate Hall of Shame"
March 19: Sterling Selectmen disappoint at Wekepeke forum
March 16: Sterling should oppose Nestle...the right way

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

Vermont looking to restrict Wekepeke-style projects

I was going to write about a little bit of movement in the Wekepeke discussion between Sterling and Clinton, but the most pertinent information and quotes come from this week’s Landmark and I’ll be damned if I’m going to fork over $37 for a subscription so that I don’t have to wait a week to read that paper.

(Earth to Landmark: every newspaper around posts it’s current news for free, including weeklies like the Times and Courier, the Item, and the Leominster Champion and Fitchburg Pride...which are both owned by the Landmark. It’s time to keep up with the Joneses. Further, since you mailed this week’s issue to everyone in an effort to gain subscriptions, you should at least make this week’s issue available for free online to be consistent. But I digress.)

So, here’s a little item from yesterday’s Globe about a bill in Vermont’s legislature to restrict commercial water pumping on a state-wide basis:

The Senate has passed, and the House panel is soon to take up, legislation that would declare the ground water under Vermont a public trust.

That's a legal doctrine that the legislation's backers say could provide protections for the state's underground aquifers essentially by restricting individual users from sucking them dry...

As passed by the Senate, the bill:

• Declares Vermont's ground water to be a public trust, similar to its lakes and rivers...
• Sets up new permitting and reporting requirements. Commercial and industrial users would have to report withdrawals of more than 20,000 gallons per day and obtain a state permit for those larger than 57,600 per day.
• Exempts all but the largest farms, which would have to report to the Agency of Agriculture if they withdraw more than 50,000 gallons per day.
• Allows courts to impose attorney's fees on the loser of a public trust lawsuit, a measure whose backers said would discourage such suits.
• Sets up a new permitting system that would require those seeking permits to show their water withdrawal will not have an adverse effect on state water quality standards, wetlands, or other users.

I don’t know if this legislation is significantly more restrictive that the rules of the Massachusetts DEP regulating commercial water draws in our state, other than the threshold for getting a special permit (57,600 gallons in the Vermont proposal vs. 100,000 gallons in Mass.). But it’s interesting that other New England states are looking at restricting the sort of project Nestle is proposing for the Wekepeke.

One other point that caught my eye was this warning from Canadian environmentalist Maude Barlow who spoke earlier this week at a hearing on the bill:

[S]he said that even with a new law in place, Vermont might be targeted by litigation brought under the North American Fair Trade Agreement saying the state's efforts to limit water withdrawals interfere with international trade in bottled water.

Hmmm. The idea that International treaties could supersede local laws regarding pumping was one of the points of the Council of Informed Citizens that I derided as “a head scratcher” when I criticized their tactics last month. I still don’t think that is ground that we should be staking out at this point on the process, but perhaps that concern is more legitimate than I had first considered.

Tags: Massachusetts Clinton Sterling Nestle Wekepeke Vermont

This can't be helpful

From the T&G:

Mr. Sheppard asked for a copy of Nestlé’s bid, which the selectmen agreed to provide. He also asked that a forum be planned with officials and residents from both towns.

Chairman Robert V. Pasquale Jr. reluctantly agreed to a forum, after urging from fellow board member Mary Rose Dickhaut.

“There’s a lot of concern over nothing,” Mr. Pasquale said. “Those people up there in Sterling have a lot of time on their hands.”

Instead of insulting we "people up there in Sterling" how about having a dialogue with us? If you want this project to go through so badly convince us why it is legal, and why it is good for the community.

While it seems clear that Mr. Pasquale couldn't care less what the people of Sterling think, he could at least be polite to our elected representatives. It's particularly disrespectful that a Clinton Selectman would make this comment with his equal from Sterling in attendance.

It's also not a very good negotiating tactic; some of us think the Sterling Selectmen are the only ones in town willing to make a deal. Insulting them when they reach out to you might drive them away from the table.

I hope Mr. Pasquale can set aside his contempt for the "people up there in Sterling" long enough to make it through this proposed forum.

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

Tough decision ahead for Clinton

The details of Nestle's proposed deal with Clinton have been clarified, and now the onus is back on Clinton's selectmen to determine their next move. Here are the clarified details, from the Item:

In Clinton, the organization is offering to pay the town’s current rate for untreated and undelivered water: $2.55 per 100 cubic feet. Clinton could potentially garner $200,000 to $300,000 annually based upon state mandated withdrawal volumes. Nestlé would also chip in another $200,000 for dam repairs.

Nothing is written in stone for Sterling as of yet, but Nestlé proposed to enter into a contractual agreement with the town concerning the project and additional annual payments to be made to the Town of Sterling.

As previously reported, the $200,000 for dam repairs would be split with an initial payment of $100,000 and five annual payments of $20,000 to follow.

I don't know what Clinton was expecting, but that doesn't seem like very much money to me. $300,000 annually is less than one percent of Clinton's entire budget, and equivalent to about two percent of their entire property tax base. So if Clinton were to use that money as a straight offset to property taxes, the average homeowner would save $65 each year. Or to put it another way, Nestle's payments to the town would just about pay the annual budget of the Bigelow Library.

Every little bit helps, but I expected Clinton to come out of this with more than that.

The proposal for $200,000 over six years for dam repairs seems particularly meager, since it's been widely reported that the repairs will cost around $1.5 million. Regardless of how much Nestle pays, Clinton is going to be on the hook for the repairs one way or the other. If they took Nestle's money from the repair fund and the money from the yearly water payments, it will still take them five years to raise the funds to fix the dams.

To put Nestle's proposal into perspective, Nestle would be paying 3/10 of one cent per gallon of water. So when you head to Hannaford to spend $4.99 for a case of Poland Springs water, the water in that entire case would have cost Nestle $0.01 (They're obviously paying for purifying, bottling, etc. on top of that, but still, that's a pretty hefty margin).

So what is Clinton to do? I would be surprised if the Selectmen accept the RFP as it is written, but I don't know what they are expecting. If they don't accept it, will they counter with their own proposal? Will they ask Nestle to go back to the drawing board and see if they can squeeze a few more pennies out of their purse? Will they just scrap the whole idea and find something else to do with the property? And what will they do about the Conservation Restriction that was passed in 2004, which is still waiting to be signed and is required if the town wants state money to buy the Rauscher Farm?

Clinton can't just do nothing with the Wekepeke. If they just let the dams go and one of them were to fail, Clinton will be on the hook for the liability, and that could very well be more than the $1.5 million it would cost to repair them. They could sell the land back to Sterling, but the status of the dams would be part of any deal: if the dams weren't repaired before such a sale, you can bet Sterling would want a $1.5 million discount since they would be on the hook for the repairs and the liability. Besides, the chances of Sterling passing an override to purchase the land is very slim.

One option that was discussed briefly at the Sterling meeting last week was to demolish the dams altogether and restore the Wekepeke Brook to it's natural path and flow. That idea was mentioned by a representative from the Nashua River Watershed Association as one possible solution that the NRWA would support. What would something like that cost? Would it be significantly cheaper than the $1.5 million to repair the dams? (I suppose you could strap some dynamite to the dam and that would be a lot cheaper, but the dams would probably have to be dismantled in an orderly fashion) And what sort of opposition would that engender from Lancaster? Without the dams upstream, the brook would flow unfettered to Bartlett Pond at the base of Ballard Hill. As it is, the pond overflows and shuts down route 117 once a year or so. What would the impact be if the old mill at Bartlett Pond were the brook's first choke point?

But before we get that far, politics may render the whole discussion moot. At the Sterling meeting, State Rep. Harold Naughton spoke very carefully about Clinton's upcoming elections, but left the impression that the future of the Nestle proposal could be affected by the May election for two seats on the Board of Selectmen. He did not say exactly what the effect would be, but I inferred that if there were turnover on the board, the whole project could be in jeopardy. It seems to me that nearly every decision the Clinton board makes is a 3-2 decision, so I surmised that if one of the two incumbents were to lose, the 3-2 decisions might start going the other way. And if that's the case, will it prompt the board to try to act before the election, in order to lock in a decision on the Wekepeke's future?

I don't know, but now that Clinton has heard what Nestle is proposing, it seems to me that the project is farther from reality today than it was last week.

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

Nestle's propsal could change everything

SATURDAY UPDATE: Ken MacGray at the Clintonmass.com forum posted a note from Nestle that is being circulated among the press:

Hi Clinton and Sterling reporters --

there's an article on the above paper's web site tonight which contains significant factual errors -- including an outlandish figure of 28 million. We have an executive summary of the RFP response prepared which we'll provide you on Monday. While we work at getting a correction over the weekend, we just wanted to make sure the mistake did not get repeated elsewhere.

Thank you and have a good weekend.

Nancy J. Sterling, APR
Senior Vice President, Strategic Communications ML Strategies, LLC

The discussion there is speculating that the proposal is for $2.55 per 100 cubic feet of water, which would bring the contract down to $280,000 per year from the reported $28 million. If that speculation is true, it changes the discussion 18o degrees. Would it be worth Clinton's trouble for an additional $280,000?

In any event, I guess we'll have to find out Monday to find out if Nestle's Easter basket is filled with cash or not.

---

Nestle presented Clinton with their offer for the Wekepeke water on Friday, and it is impressive. Frankly, the magnitude of the proposal will probably significantly change the discussion about the project's viability. Here are the first details, from the Times and Courier:

Nestlé, which has spent the last year expressing interest in tapping the aquifer beneath the 564-acre Wekepeke Reservation in northern Sterling, is seeking to pay Clinton $2.55 per cubic foot of water extracted. Nestlé officials had earlier proposed installing wells with maximum safe yields of 230,000 gallons per day, or approximately 11.22 million cubic feet per year — a potential payout to Clinton of $28.62 million.

Nestlé is also offering Clinton an initial, one-time payment of $100,000 for Wekepeke dam repairs, plus another $100,000 annually for ongoing maintenance, broken into five $20,000 annual installments. In addition, the company will pay Sterling $200,000 to $300,000 annually.

Let's try to put those numbers into perspective. According to Clintonmass.com, the entire fiscal year 2008 budget for the town of Clinton was a shade north of $37 million. Of that, about $14.7 million were raised in property taxes. Essentially, if Clinton chose to do so, they could stop collecting property taxes altogether and still bring in an annual surplus of $13.9 million.

Obviously, that is a huge impact. What would Clinton do with the money? Use it for capital improvements? Salaries for more police and fire? I suppose if they wanted to, they could do an Alaska-style plan where they give each resident a $1,000 dividend in addition to paying no taxes.

Look at it another way. The proposal is for a 25-year contract, with three 10-year options. Assuming the options are picked up, that is $1.573 billion over 55 years. Even if the contract was not renewed, it would still pay Clinton over $700 million. That's A-Rod money.

As it affects the Wekepeke, the amount of money promised could remove some of the legal obstacles to the proposal. Specifically, it could affect the issues of the unsigned conservation restriction, the purchase of the Rauscher property, and the agreement with the Massachusetts Water Resource Authority to provide water to the town for free.

At the meeting in Sterling on Tuesday, State Rep. Harold Nauhgton answered a few questions about his opinion of the proposal. He said it was both his opinion and the opinion of the House of Representatives' counsel that the 2004 Conservation Restriction on the Wekepeke property would not allow Nestle or any other corporation to draw water for commercial purposes. That opinion has put Clinton in a bind, since the Conservation Restriction has to be signed and enacted in order for the town to receive the $353,600 state grant to help it purchase the Rauscher property.

All of that may be moot now. Certainly, it won't be in Clinton's best interest to approve the restriction if it costs them over $700 million over the next 25 years. But even if the money and water didn't begin to flow for years, the town might be able to use the contract as collateral for a loan or to a bond issue to purchase the Rauscher Farm. Essentially, they could tell the state that they don't need their grant and purchase the Rauscher Farm anyway.

The other obstacle that Rep. Naughton mentioned Tuesday was Clinton's relationship with the MWRA. I asked him if he would support a petition to amend the Conservation Restriction to allow pumping if the Clinton Selectmen asked for such an amendment. He did not commit one way or the other, but said that he had some real reservations that if Clinton were allowed to sell water from what was originally a municipal water supply that the MWRA might no longer provide Clinton with water from the Wachusett Reservoir for free. Well, it seems to me that the town would have plenty of money left over to pay for water from the reservoir should the MWRA decide to end the free ride.

Of course, there are other obstacles that still remain. The question of whether or not the 1876 and 1882 Acts even allow commercial use has yet to be decided. Ultimately, that one will probably go to court. Even if that is decided in Clinton's favor, Sterling's zoning doesn't allow for commercial pumping. Assuming the zoning is not changed, Nestle will probably have to go to court again to determine if the Mass DEP's jurisdiction over commercial pumping supersedes local zoning.

I've stated previously that I don't think Sterling should be playing ball at all with Nestle until the 1876 and 1882 issues are decided. My opinion hasn't changed. However I wonder what effect the details of the RFP will have on the people of Sterling. Will they consider the offer of $300,000 annually an insult, considering that Clinton will be getting 100 times that amount, and harden their opposition? Will they warm to the plan, figuring that $300,000 is a starting point and that if the town negotiates with Nestle, it can push the payments into seven figures? I don't know.

But I know that the proposal will likely change everything. I just haven't figured out how.

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

Nestle nominated for "Corporate Hall of Shame"

In an interesting coincidence, considering all of the discussion here about the possibility of Clinton selling it's water rights in Sterling to Nestle, the international advocacy group Corporate Accountability International has nominated Nestle for it's Corporate Hall of Shame. Nestle is vying for a spot against such renowned corporate scofflaws as Blackwater and Countrywide Mortgage.

Nestle has been nominated "for numerous labor violations including child exploitation, contributing to the obesity epidemic, and threatening community water supplies for its bottled water brands."

While I find the nomination an interesting coincidence, my opposition to the proposal is based on my belief that it is illegal and would not be the best thing for Sterling, not because of some high-minded environmentalism. In fact, I like Poland Springs water, drink it quite often, and had no qualms about munching Nestle-brand candies from Jackson's Easter basket last week.

But for those who oppose the project on more global grounds, this news can't hurt.

Tags: Massachusetts Clinton Sterling Nestle Wekepeke

Sterling Selectmen disappoint at Wekepeke forum

Last night, over 150 Sterlingers met with the Board of Selectmen to discuss the town's position on Clinton's plan to sell allow Nestle to pump water from land they own in Sterling. All of the citizens who spoke at the forum spoke against the plan, many of them asking the Selectmen to participate in the effort to defeat the plan. But it became clear early in the 2 1/2 hour meeting that the Selectmen have no stomach for a fight with Clinton or Nestle, and nothing that was presented during the evening appeared to change their position.

Without the endorsement of the Board of Selectmen, efforts to oppose the plan are bound to be undermined.

As reported in today's Telegram and Gazette, the opinion of special counsel Mark Bobrowski is that the current zoning does not allow an entity to draw water for commercial purposes. In the scenario that he outlined (and returned to again and again during the meeting) the town of Clinton or Nestle would propose a change in the zoning to allow the use, Sterling would hire a hydrologist (potentially with funds provided by Nestle) to determine the impact on the Wekepeke aquifer, the scientists would report on any adverse effects, and the town meeting would vote the proposed change up or down. Under this scenario, if the town meeting defeats a zoning change Nestle could not pump water out of the Wekepeke.

Over and over again, Bobrowski spoke about this scenario where the town meeting would reject a zoning change and the plan would be stopped. However, he also noted at one point that Nestle's position is that local zoning does not apply since their proposal is to pump more than 100,000 gallons of water a day, since water draws of that capacity are permitted by the Massachusetts Department of Environmental Protection. According to this theory, if the state issues a permit it would supersede the town's bylaws.

Another topic of discussion was the question of whether or not this use is even permitted under the 1876 and 1882 acts that established the Clinton Water Works and gave Clinton the water rights to the Wekepeke. As I discussed earlier this week, it's my position that the Nestle proposal is not an allowed use under the acts and that the rest of the discussion is moot. I am not the only one. Attorney James Gittens has researched the issue and also believes that the acts do not allow a project like the one that has been proposed. Before the meeting, he filed a petition with the Attorney General's office requesting:

I call upon your office to send a ‘cease and desist’ order to the Town of Clinton Selectmen to forestall their impending violation of Ch. 14 of the Acts of 1882 and I also call upon your office to bring a Superior Court action against the Clinton Selectmen to enforce Ch. 14 of the Acts of 1882 if need be.

Gittens has also drafted a legal opinion supporting the claim and has signaled his intent to bring a suit against the town of Clinton based on the 1876 and 1882 acts. Gittens and other citizens (including me) asked the Board to be a party to a potential suit to have the Acts of 1876 and 1882 interpreted. Gittens even offered to represent the town for free in the action, but the Board declined to accept his offer or support legal action.

I am disappointed that the Selectmen are not willing to try to stop the project before it even gets started. A ruling that the proposed use is not permitted under the existing state laws would stop the project in its tracks. If it's not permitted, it's not permitted. Further, two of the three selectmen said that their ideal solution would be to have Sterling purchase the Wekepeke parcel from Clinton. It seems to me that the parcel might be affordable for a possible Sterling purchase only if the water rights have no commercial value. (Clinton has not suggested that they are interested in selling, so any discussion of a purchase is hypothetical anyway.) Yet, the Selectmen are not willing to work to have the the use ruled illegal.

Even more frustrating, the Board of Selectmen wouldn't even commit to delaying any discussions with Clinton or Nestle until this question is decided. If the Board doesn't want to put their necks on the line to actively help stop the proposal, fine. But the town should not play ball with Nestle or Clinton until the rules of the game have been interpreted.

Perhaps the most telling moment was the board's response to a question about the possibility of fighting Nestle in court over zoning. The questioner asked if the Selectmen were willing to commit whatever resources were necessary to defend Sterling's bylaws in the event of a suit. One selectman responded that if it were "20 or 30 thousand" they would, but that they wouldn't want to get into an expensive legal fight. The inference there is shocking. Essentially, the selectman was conceding that if Nestle wants to push Sterling the town won't be willing to stand up to defend it's own bylaws. If that is the Board's position, then it follows that the Board is willing to negotiate a deal with Nestle to allow the development because they don't think they can afford a protracted fight.

I went to the meeting hoping that the Selectmen would help lead the effort to protect the Wekepeke from development. I at least expected them to support opposition to the plan. They made it clear that the people of Sterling would be fighting alone.

Attachments:

• Application Of Town Of Sterling Protective By-Law To Proposed Commercial Groundwater Pumping And Distribution In And From Wekepeke Reservation Utilizing Town Of Clinton Pipeline Or Pipeline Right-Of-Way
• Superior Court Action in the Nature of Mandamus to Enforce Wekepeke Water Right Restrictions
• Impending Violation of Ch. 14 of the Acts of 1882 by Town of Clinton—Enforcement Action by Attorney General’s Office Requested

Tags: Massachusetts Clinton Sterling Nestle Wekepeke