After more than five years of haggling, construction on a 176,000-square-foot bottling plant is finally underway in Nottingham. Unless concerned neighbors’ last-ditch efforts halt the project, the USA Springs facility will soon begin pumping some 300,000 gallons of water a day from an aquifer near Route 4.

Attorneys for USA Springs defend the company’s right to tap into the resource and conduct their business. Despite a few pending matters, the company has all the necessary permits from the state and the town of Nottingham to continue building the plant, and can legally begin pumping water at any time.

USA Springs received driveway and building permits around Thanksgiving and commenced moving earth shortly thereafter. Protesters took their message to commuters on Route 4 in early December as construction vehicles entered the site, but their presence did nothing to hold up the project.

“The concern is that 112 million gallons a year being drawn out of that aquifer has the potential of having an impact on the quantity of water available to the neighbors,” said Bill McCann of Save Our Groundwater.

“The sucking of that much water out of the ground has a tendency to draw contamination toward the well,” he said. “Our major concern is we’ve explored these potential impacts, and we don’t know for sure because the scientists can’t agree if we’re right, but we’re afraid that if we’re right, the impacts could be devastating.”  

The aquifer in question provides fresh drinking water to 10 communities: Nottingham, Barrington, Strafford, Northwood, Lee, Newmarket, Durham, Madbury, Dover and Portsmouth.

Among the latest twists in the ongoing saga was the request by Save Our Groundwater and Neighborhood Guardians for an ethics investigation into what they view as irregularities in the permitting process. The governor’s office recently received the complaint and forwarded it to the N.H. Attorney General’s Office for review, but a newly formed Ethics Committee has not yet looked into the matter.
Attorney Tony Soltani, who represents USA Springs, called the complaint and other efforts by the two organizations “an exercise in frivolity.”

“It’s unfortunate that these folks are hell-bent on accusing someone of impropriety,” Soltani said. “I have never seen a more pure and more scrutinized permit being issued than this one.”

The alleged breach of ethics dates back to December 2003, when the Department of Environmental Services denied USA Springs a water withdrawal permit and cited 27 components of the application that did not meet environmental requirements.

USA Springs quickly reapplied, and the DES approved the project the following year, attaching a total of 10 conditions. One of those conditions, which McCann and others find particularly suspicious, was that USA Springs undertake the expensive task of clearing contamination from a neighboring site.

“The bottom line of what we’re alleging is that between 2003, when the permit was initially denied, and 2004, when it was approved with conditions, nothing scientifically changed,” McCann said. “Our contention is that the approval is part of a quid pro quo that USA Springs will clean up the contamination on the adjacent site in exchange for a permit.”

Save Our Groundwater later united with the towns of Nottingham and Barrington to appeal the permit approval, and the N.H. Supreme Court heard the case in September 2005. The court denied the appeal in May 2006 and upheld the permit approval.

According to Save Our Groundwater, the cost of clearing contamination from the neighboring site was estimated at about $1 million. McCann accused the DES of making an unethical deal with USA Springs in order to pawn off the heavy expense of hiring someone to clean the site.

Soltani believes the accusations stem from a fundamental lack of understanding of the state’s licensing laws. Conditions like those imposed by the DES are not illegal or unusual, he said.

“There is no quid pro quo in that area at all,” Soltani said. “The Department of Environmental Services has a precondition for the permit requiring the cleanup of the adjacent site. They did that, but that is not an improper function, nor is it an impropriety.”

Senior Assistant Attorney General Simon Brown said his office received and reviewed the complaint, but determined no criminal violations had been found. The AG’s Office is not responsible for investigating ethics violations, he explained.

“We received a letter that was sent to the governor’s office by Thelma Thompson (of the Neighborhood Guardians),” Brown said. “That letter was cc’d to our office. An investigator reviewed the contents of the letter and wrote back to Thompson that her concerns do not merit a criminal investigation.”

A seven-member Executive Branch Ethics Committee was established in 2006 and met for its first organizational meeting on Jan. 3. The committee is responsible for issuing ethics guidelines for state officials and investigating complaints of ethics violations.

Deputy Attorney General Bud Fitch said on Jan. 5 that the Ethics Committee did not have a complaint from Save Our Groundwater or Neighborhood Guardians on its agenda. In order for one of the organizations to file a complaint, it must issue a sworn statement with specific allegations. The committee would then take the complaint under consideration during one of its bi-weekly meetings and determine whether it merits an investigation, Fitch explained.

McCann said he planned to draft a letter requesting a transcript of the minutes from the Jan. 3 committee meeting to learn more about its procedures before planning the group’s next course of action.

While the status of an ethics investigation remains up in the air, activists have also taken issue with the Department of Transportation’s extension of a driveway permit for USA Springs. The permit was under appeal in November, but a hearings examiner dismissed the case without ordering a hearing on the matter.

McCann accused the DOT of ignoring numerous safety hazards the project would pose on Route 4. He said Nottingham Police Chief Philip English has expressed grave concerns about large trucks entering and exiting the site from the busy street, where the speed limit is 55 mph.

McCann believes the DOT and other state agencies have been “jumping through hoops” to allow the project to go forward, granting permits without fully considering potential impacts on the environment and traffic safety.

“Something’s got to be done or you’re going to have a serious situation on Route 4,” he said.

DOT spokesman Bill Boynton denied that claim. He said the permitting process has been consistent with state law, and USA Springs met all the criteria for a driveway permit.

“I don’t think there was anything unusual about this,” Boynton said.

According to Soltani, McCann’s gripe with the DOT further demonstrates his lack of understanding of state statutes. He said nonprofits like Save Our Groundwater and Neighborhood Guardians lacked the jurisdiction to appeal the driveway permit because they failed to show they would be directly affected by construction. The state hearings examiner therefore had no choice but to dismiss the appeal.

Boynton confirmed the hearings examiner dismissed the appeal because the petitioner lacked the proper jurisdiction. He noted the group filed a motion for reconsideration on Nov. 28, but the hearings examiner has not yet ruled on that motion.

Soltani also denied claims from the nonprofits alleging USA Springs engaged in illegal communications with the DOT and the Attorney General’s Office while the issue was under appeal.

Soltani acknowledged communicating with the agencies, but said state law only prohibited USA Springs from speaking directly to the hearings examiner.

“We have had no contact whatsoever with the hearings examiner,” he said.

McCann feels that bickering over jurisdiction and other administrative technicalities has stifled public participation and prevented his organization from being heard on the real issues at stake.

“We’re getting hung up and not getting the opportunity yet to fight the issues of safety or water quality or water quantity,” he said.
The holdups made 2006 excruciating for volunteers with Save Our Groundwater and Neighborhood Guardians, but McCann said both groups will continue their campaign to keep corporate straws out of Nottingham’s aquifer.

“It’s been a frustrating year, but the glass is probably half full, not half empty,” he said.

A couple of other pending appeals have kept a glimmer of hope alive for the groups.

Neighborhood Guardians filed an appeal in December with the Nottingham Zoning Board contesting the building permit, but the appeal was dismissed before the end of the month. The group promptly filed a motion for reconsideration on the grounds that the Zoning Board did not hold a public hearing before denying the appeal.

A Rockingham Superior Court judge took the matter under advisement following a hearing on Jan. 3, but had not issued a ruling as of Friday. If he rules in favor of the Guardians, the case will be remanded to the Zoning Board for further consideration.

There is also a pending appeal before the Water Council, brought forward by the neighboring town of Barrington. And McCann is still hoping the driveway permit will soon be addressed in a public hearing before the DOT.

As far as Soltani is concerned, however, opponents are only delaying the inevitable. Pumping can legally begin at any time and will likely commence by spring at the latest, he said. Weather variables make it difficult to estimate when the bottling plant will be completed.
McCann expects the battle to drag on for at least two more years, but he is cautiously optimistic that Save Our Groundwater and Neighborhood Guardians will ultimately prevail.

“Justice delayed is justice denied,” the two organizations said in a joint statement. “We are calling for justice to roll down like water from the lofty heights of the State House in Concord and flow through Nottingham, Barrington and communities all the way to Portsmouth that are potentially affected by this project.”

Save Our Groundwater versus USA Springs
January 2001: USA Springs begins plans for a bottling plant and major water withdrawal project from a site off Route 4 in Nottingham.

August 2001: Save Our Groundwater forms in response to the USA Springs plans, vowing to halt the project.

Feb. 4, 2003: USA Springs submits a final application report for a major groundwater withdrawal permit.

Aug. 12, 2003: The Department of Environmental Services denies the permit, citing 27 flaws in the application.

Sept. 11, 2003: USA Springs files a motion for rehearing.

Sept. 18, 2003: The motion for rehearing is granted and the Aug. 12 decision is suspended.

July 1, 2004: The DES approves the groundwater withdrawal permit with 10 conditions attached.

Sept. 15, 2005: The N.H. Supreme Court hears arguments regarding an appeal of the permit issuance from Save Our Groundwater andthe towns of Nottingham and Barrington.

May 19, 2006: The Supreme Court affirms the DES issuance of the withdrawal permit.

Dec. 8, 2006: Save Our Groundwater calls for an ethics investigation into alleged irregularities in the permitting process.