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Menominee & trout fishers
join to stop Polar spring pumping,
Langlade Co. WI, 2004
Bottled Water Plant Foes Gain
DNR Approval for Antigo Wells to Get Second Look
Friday, February 6, 2004
By Anita Weier The Capital Times
The state Department of Natural Resources has granted a petition
from conservationists and the Menominee Tribe for a contested case
hearing regarding the agency's approval of a Polar Ice Water bottling
plant near Antigo.
The petitioners contend that the DNR ignored the impact high-capacity
wells for the plant would have on the local watershed and failed to
provide an environmental assessment.
Polar Ice plans to pump 140,000 gallons a day from ground water
supplies from a new well. But Dennis Hose, who is planning the bottling
operation, also operates high-capacity wells for an existing fish
hatchery operation. Environmentalists fear that some of those wells
could be converted to bottling use, to take a total of 1.5 million
gallons a day.
Another concern is that taking ground water could affect local water
bodies that flow into the Wolf River.
The petitioning group includes Trout Unlimited chapters, the Langlade
County Waterways Association and the Menominees. They are represented
by the Garvey & Stoddard law firm and Midwest Environmental Advocates.
An administrative law judge from the state Department of Administration
will conduct the hearing, as yet unscheduled. It will address whether
the DNR should have prepared an environmental impact statement before
approving the plant and whether the agency should have considered
if the petitioners' enjoyment of affected waters in the vicinity would
be threatened.
The group first asked for a contested case hearing in August 2003.
The DNR granted the hearing in September but then reconsidered and
denied it in October, according to Garvey & Stoddard. In November,
the coalition filed a petition for judicial review in Brown County
Circuit Court appealing the DNR decision. The DNR then granted the
petition in January.
Judy Ohm, an attorney for the DNR, said that originally the contested
case hearing was denied in part and granted in part. It was denied
on the basis that an environmental impact report was not required
under the agency's administrative code, but granted on the basis that
it might hurt the petitioners' enjoyment of affected waters in the
vicinity. But in October the hearing was denied on that basis as well.
"We had some internal discussions and determined we should reconsider,"
Ohm said.
But in January, after consulting with the governor and the Department
of Justice, the DNR granted the hearing, she said.
The case raises questions similar to those debated when Perrier
attempted to build a bottling plant in the town of Newport. The company
gave up in the face of local opposition and litigation and instead
developed a plant in Michigan, where litigation also has ensued.
In the Perrier case and the Polar Ice case, the DNR says that it
does not have the authority to regulate a high-capacity well unless
it affects a municipal water supply. But Melissa Scanlon, an attorney
with Midwest Environmental Advocates, says the DNR has additional
regulatory authority under the state's public trust doctrine.
Some state legislators have been trying to develop comprehensive
ground water legislation that would resolve these and other issues.
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Water bottling challenge has a familiar cast Tribe,
environmentalists oppose groundwater use
By LEE BERGQUIST
lbergquist@journalsentinel.com
Nov. 24, 2003
Approval of a proposed water bottling business in Langlade County
by the state Department of Natural Resources has been challenged by
environmental groups and the Menominee Indian tribe.
The dispute once again pits environmentalists against a private
bottler as the controversial issue heads to court and, possibly, to
the Legislature next year.
Opponents on Monday said they feared the bottling project would
harm the local watershed, just east of Antigo, by driving down groundwater
supplies that feed into the Wolf River. The Menominee tribe's reservation
is just north of the project.
But a lawyer for Polar Ice Water said the bottling business was
planning to pull only modest amounts of groundwater and would cause
no damage to a local pond, stream and wetlands.
"This is a very modest well," said Carl A. Sinderbrand of Madison.
The owner of the business, Dennis Hose, wants to pump an average
of 140,000 gallons a day from the groundwater.
By comparison, the controversial Perrier bottling plant proposed
in Adams County called for pumping 720,000 gallons a day from springs
that feed the Mecan River. Nestle Waters North America, formerly Perrier
Group of America, said in September 2002 that it shelved plans in
Wisconsin after it had built a plant in Michigan.
Opponents of the Langlade County well have filed a petition in Brown
County Circuit Court that challenges the DNR's approval of the project.
Melissa K. Scanlan, an attorney representing opponents, said that
the DNR ignored its authority under the "public trust doctrine," which
holds that all waters of the state are public resources owned by all
citizens. The petition also contends that the DNR should have conducted
an environmental assessment of the proposed well.
"It's a fanciful theory," said Sinderbrand, who maintained that
the Legislature has the controlling authority in this case.
Todd Ambs, administrator of the DNR's water division, agreed. State
law says that the DNR can regulate high-capacity wells only if they
affect a municipal water supply, Ambs said.
Hose is the owner of Trout Haven Hatchery near Antigo. He currently
uses groundwater to supply his trout farm.
Sinderbrand said that Hose planned to shut down most of the wells
that provide water to the hatchery and eventually move from fish to
bottled water.
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Local Group and Tribe Takes Legal Action to Protect
Public Waters From Bottling Plant
Contact: Melissa K. Scanlan
Midwest Environmental Advocates
608-251-5047 ext. 3
November 24, 2003
Local Group and Tribe Takes Legal Action to Protect Public Waters
From Bottling Plant Green Bay, WI- Conservationists and the Menominee
Tribe initiated legal action on Friday, November 21, 2003, in order
to protect public water resources.
The group, which is comprised of several chapters of Trout Unlimited,
the Menominee Tribe, the Langlade County Waterways Association, and
other individual parties, filed a Petition for Judicial Review, challenging
at the Department of Natural Resources (DNR) approval of a high capacity
well permit for Polar Ice Water. The coalition is represented by attorneys
from Midwest Environmental Advocates, a non profit environmental law
center, and Garvey & Stoddard. The DNR approval would allow Polar
Ice to pump spring water for the purpose of water bottling and export
from the watershed. The DNR has ignored the impact this well would
have on Public Trust resources and failed to provide an environmental
assessment of the overall impacts from the proposed project.
Polar Ice would remove a substantial amount of ground water and
may potentially damage the health of connecting surface waters, including
the Rabe Pond and Creek, the Wolf River and surrounding wetlands.
"The reduced spring flow from the bottled water operation may harm
the cold water trout fishery in Rabe Pond and Creek and the waters
to which they are tributary," said Mitch Bent, a member of the Antigo
Chapter of Trout Unlimited.
"The DNR has ignored our concerns by denying a hearing on the groundwater
pumping. This legal action is now necessary to make sure the DNR
does its job and protects our common public trust resources," he added.
The Petition for Judicial Review challenges the DNR's failure to assess
the environmental impacts, the DNR's approval of a high capacity well
without protecting public trust waters, and the DNR's denial of a
hearing on these issues.
"This is a very important case because the DNR has failed to protect
the waters of the state in the Wolf River watershed," said Glenn Stoddard,
attorney with the law firm of Garvey & Stoddard who is representing
the coalition. "The DNR has once again caved into the private interests
of a water bottler by granting it a permit to exploit spring water
resources which are hydrologically connected to important surface
waters of the state."
Trout Unlimited and Menominee Tribe v. Polar Ice http://www.midwestadvocates.org/archive/Trout-v-Polar/
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Spring-rich Langlade County wary of water bottler
By Jim Lee
Gannett Wisconsin Newspapers
July 21, 2003
ANTIGO - Water bottling giant Perrier might have shifted its immediate
search for spring water to Michigan but central Wisconsin wells remain
a vulnerable target for the entire bottled-water industry.
Langlade County, which has an abundance of cool springs and quality
trout streams, has discovered that local and state governments have
little control over private landowners determined to enter the water-selling
market.
“I’m learning this is really big business,” said Becky Frisch, Langlade
County zoning administrator. “There’s a big demand for water.”
The county and the town of Polar became acquainted with water regulations
this spring after Dennis Hose, a town resident and owner of a trout
farm, applied for a permit to change the zoning on two acres of his
land from farming to industrial in order to sell spring water.
Initially, Hose’s proposal to pump 6,000 gallons a day did not generate
any opposition, said Mike Klimoski, a county board supervisor and
chairman of the county’s land and water use planning committee which
reviewed the draft.
“With the plan he presented, we had no choice but to approve it,”
Klimoski said. “I thought it was a pretty legitimate plan.”
Then Frisch, the Department of Natural Resources, the local chapter
of Trout Unlimited and others took a second look.
“He said he might double or triple the output if the market allowed,”
said Dave Seibel, DNR fisheries biologist at Antigo. “But his application
was for a 500-gallon per minute well. He could pump 6,000 gallons
in 12 minutes. That didn’t make a lot of sense.”
In response to citizen concerns, the Polar Town Board agreed to
support rezoning Hose’s property with a restriction that pumping would
be limited to a maximum of 20,000 gallons a day and the stipulation
that if Hose ever sold the property it would immediately revert back
to A1 agricultural zoning.
Rather than accept those limitations, Hose, on May 15, withdrew
his application.
That has only served to heighten speculation and concern as Hose
admits he has considered hauling water from his site to another location
for bottling.
A change in zoning or a conditional use permit would not be necessary
to transport water. It’s the bottling aspect that requires industrial
zoning, Frisch said, adding it wouldn’t be difficult to find property
zoned for industrial purposes in Antigo, which is about 10 miles west
of the Hose property.
Without a need to rezone, Hose could begin hauling an unlimited
supply of water at any time if such a venture appeared profitable
to him. Road weight limitations in spring could restrict a year-round
operation from his doorstep. Frisch said Hose reportedly has considered
the possibility of piping water through adjacent farms to a blacktop
road without weight restrictions.
In the wake of Perrier’s failed attempt to establish bottling operations
from high capacity wells in Adams and Waushara counties, legislation
was introduced that required an environmental impact statement before
any water bottling operation could begin but the language was line-item
vetoed by former Gov. Scott McCallum, Seibel said.
As a result, the DNR believes it has no jurisdiction over private
well operations unless they jeopardize a municipal water supply, he
said.
The issue of regulation is important to Langlade County because
it has an abundance of springs and the potential for water sales worldwide
appears to be building.
At least one Langlade County trout farmer, Jim Augustyn, has been
hauling water from his town of Ainsworth property to a commercial
bottling facility for several years, Frisch said.
Hose, 46, owner of Trout Haven fish hatchery since 1990, has been
unclear as to his future intentions.
“I doubt it,” he said when asked recently if he would pursue a plan
to truck water from his site. “It’s too tough.”
At the same time, he said, “Everything is up in the air. I kinda
quit on it for awhile.”
Hose said he viewed the opportunity to sell water “as a way to make
a buck and try to get out of going bankrupt.”
He said his Trout Haven fish hatchery produces 400,000 to 1,000,000
rainbow trout annually for release in public and private waters. He
called the operation “the biggest fish hatchery in the Midwest” but
said business has been slumping.
Hose said he doesn’t understand objections to his bottling plan,
considering that “I pump over 3 million gallons a day” into the hatchery.
That water subsequently flows from the hatchery into Rabe’s Pond
and down Rabe’s Creek (both Class 1 trout water) into the Little West
Branch of the Wolf River (also Class 1 trout water) on the Menominee
Indian Reservation.
Mitch Bent, a director of the Antigo Chapter of Trout Unlimited,
said his organization was told by a former DNR fisheries biologist
that Langlade County’s spring ponds were unique “in the entire world”
because so many springs were concentrated in such a small area.
“Pure drinking water is a scarce commodity,” Frisch said, adding
that if there is a demand “then people are going to figure a way to
get it out of here.”
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SYNOPSIS OF POLAR ICE WATER CONTROVERSY
Feb., 2003: Dennis Hose (a.k.a., "Polar Ice Water") sought a rezoning
permit from the Town of Polar and from Langlade County to rezone two
of his 40 acres of land to install a 500 gal/min (gpm) high capacity
well (HCW) allegedly to withdraw and bottle 6,000 gallons per day
(GPD) of springwater, and to erect a building thereon. Currently,
Hose operates "Trout Haven Hatchery" on his property and pumps water
for his hatchery from 10 HCW's. Rezoning was granted by the Town of
Polar and the Langlade County Water & Land Use Planning Committee.
March, 2003: Rezoning request sent from full County Board back to
Committee after citizens raised concerns about the actual intent of
the applicant for rezoning. Committee referred the item back to the
Polar Town Board for review.
April 30, 2003: UW-Stevens Point Professor George Kraft addresses
a special meeting hosted by Polar Town Board to inform attendees on
groundwater and impacts of HCW's on groundwater. Polar Town Chairman
Bill Walton announces afterwards that the Township will grant a rezoning
request to Mr. Hose at its 5/15/03 meeting, but WITH restrictive covenants
attached to said permit.
May 15, 2003: At the monthly meeting of Polar Township, Chairman
Walton reads the covenants that would be attached to the rezoning
request sought by Mr. Hose. Walton asks Hose if these are agreeable
to him. He responds by saying "No," and he withdraws his rezoning
request.
July, 2003: The Wisconsin DNR approves Hose's application for a
HCW permit (300 gpm). The number of gallons that Hose claims he will
extract daily will be somewhere between 140,000 and 180,000, THIRTY
TIMES as much as he claimed he was going to withdraw when he sought
his rezoning permit from the township and county. Hose plans to abandon
seven of the 10 HCW's on his property.
Summer, 2003: PIW seeks to avoid conflicts with the township by
planning to run a pipeline westward approximately one mile to CTH
"S" in order to pipe springwater there for loading into tanker trucks.
This would avoid problems with truck load limits on town roads. During
this time, PIW makes arrangements with adjacent landowners to obtain
easements for installing the pipeline across their properties. It
also makes an offer to the Kolpack family to buy their farm property
(alongside Reimer Road in Polar Township east of CTH "S") for about
$380,000 but to allow them to continue to farm the land.
Aug., 2003: Three TU chapters (Antigo, Green Bay & Wolf River),
the Wisconsin TU State Council, the Menominee Tribal Nation, the Langlade
County Waterways Association and several individuals petition the
DNR through their attorney (Glenn Stoddard of the law firm Garvey
& Stoddard, S.C.) to be granted a contested case hearing (CCH) on
the Department's issuance of said HCW permit. The plaintiffs argue
that their rights and interests in the waters adjacent to the proposed
springwater extraction operation (Rabe Pond & Creek, Garski Flowage,
Krause Springs) would be harmed by the operation, and they disputed
the claims by the Department (and the applicant, PIW) that changes
in pumping as outlined in the proposal will be positive for the adjacent
Rabe Pond.
Sept. 2, 2003: The DNR notifies the applicants' attorney that it
has granted them a CCH on one of two points raised in their submission
reqesting a CCH.
Sept., 2003: PIW requests a permitl from Polar Township to run its
pipeline underneath Reimer Road. The Polar Town Board grants approval
of the permit, provided a number of conditions are met. The attorney
for PIW, Carl Sinderbrand (who was the attorney used by the DNR during
the controversy with the Perrier Group of America's attempt to extract,
bottle and sell springwater in the Adams-Waushara counties area a
few years earlier), submits a letter to the DNR urging it to reconsider
its approval of a CCH on the PIW HCW permit.
Oct., 2003: The DNR sends a letter to the plaintiffs' attorney advising
him that it has "reconsidered" its approval for a CCH on the matter
and is now denying that approval for a CCH.
Nov., 2003: The plaintiffs, through their attorney, file a lawsuit
seeking "judicial review" (JR) of the DNR's denial of a CCH and requesting
overview and an opinion as to whether or not the DNR must handle the
permitting of all HCW's, not just those impacting municipal water
supplies, more broadly. The JR request is filed in Brown County and
put before Circuit Court Judge Dennis McKay.
Jan., 2004: The DNR sends a letter to the plaintiffs attorney advising
him that the Department has "consulted with the Governor and the Wisconsin
Department of Justice," and based upon that process, it has decided
(again) to grant the request for a CCH. No date yet has been set for
commencement of that hearing. The JR suit will be "dismissed without
prejudice," meaning that it can be re-submitted at a later date if
the plaintiffs so choose.
The controversy over this permit arises from several points.
1) The applicant initially sought a HCW permit for a 500 gpm HCW
to (allegedly) extract 6,000 gpd. This amounts to 12 minutes of pumping.
(This is similar to hunting rabbits with a .458 Magnum rifle). To
extract 6,000 gpd, he wouldn't even have needed to rezone his property,
so we were told. We suspect that the actual intent of PIW was to extract
much, much more than 6,000 gpd. This suspicion has turned out to be
true, since now PIW asserts that it wishes to extract 180,000 gpd
or more.
2) We suspect that some other entity is behind this proposal. The
applicant, Mr. Hose, does not have the money to do the things that
are being done right now. Landowners who are granting easements for
the pipeline westward to CTH "S" have been offered, we are told, $25,000
annually for granting an easement. The farm property adjacent to Reimer
Road was bought for a price far above what the going rate is for such
property in Langlade County, especially since the new "owner" is not
asking the farmers to leave. Herb Buettner was contacted early in
2003 by one Ray Davies of North Carolina for information on spring-containing
properties in Langlade County that might be for sale, as Mr. Davies
wants to expand what he claims to be his springwater bottling interests.
3) There are potential negative impacts to the afore-mentioned waters
and to those in Menominee County, which receive waters from the Rabe
Pond/Creek system. There is no useful data at the moment that quantifies
what will happen to the aquifer and surface waters when/if the springs
in question are pumped for extraction and removal of springwater from
the watershed.
4) PIW has claimed that their proposal actually would benefit the
watershed, because they allege that they would be pumping 958,000
fewer gallons of water daily. They consistently have attempted to
equate "pumping" with "extracting," even though the two terms are
not synonymous. The "pumping" currently done by the fish hatchery
operation returns all pumped water to the receiving surface water
(Rabe Pond), save for that which is lost to evaporation from the raceways
and that which is hauled when Trout Haven Hatchery makes deliveries
of fish to customers. The springwater bottling/extraction proposal
will result in a daily net loss of springwater from the watershed,
even with the proposed abandonment of seven existing HCW's that service
the hatchery operation.
5) The overriding question/concern is what this plan would do for
setting precedent in Wisconsin. The springwaters of the state fed
the surface waters, which are (supposedly) the PUBLIC TRUST. How can
an entity take and sell something (springwater) which belongs to ALL
of us?
To date, the costs for the legal work done on this matter have come
almost solely from Trout Unlimited. TU, while it intends to fund this
matter regardless of outside financial help, certainly would appreciate
ANY financial assistance that could be provided by other groups. The
re-granted CCH will cost another $5,000 most likely, and re-submission
of the JR lawsuit would cost us another $10,000. If groups and individuals
could pledge money to help with the legal costs, it would be most
appreciated. Send me only names, addresses and phone numbers at the
moment....
Sincerely,
Mitch Bent
midebent@dwave.net
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