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US: New Hampshire Town Bans Corporate Water Withdrawals

by Kat BundySusquehanna
June 1st, 2006

As raw Northern winters melt into spring, people in some New England towns still gather to set their local budgets, pass laws, and instruct their local elected officials. In March of this year, Barnstead, New Hampshire, (population 4,800) passed a law banning corporations from mining and selling town water. The law also stripped corporations of constitutional power and authority.

What happened in this small, rural community about 20 miles Northeast of the state capital of Concord? Why didn't Barnstead citizens turn to the state's regulatory agencies and elected state officials to save them from global water corporations, like most towns across New England have been doing?

States Long Ago Empowered Corporations

Over the past several years, directors of global water corporations have been invading New England towns -- including Barnstead neighbors Nottingham, Barrington, and Alton. The story is always the same: A water corporation buys or leases land, then announces plans to pump, bottle, and sell millions of gallons of "blue gold." Citizens who are less than thrilled by these developments turn to their elected state officials and state regulatory agencies for help.

At first the state appears supportive. But when pinned down -- which can require several years of citizen self-education and organizing -- legislators and regulators reveal that corporate directors have the "right" to vacuum up a town's water. Because of this so-called "right," all that corporations need to do to get state permits to pump and sell water is to file thorough and complete applications with the state.

What happens next? Townspeople get angry. They form community groups to intervene in the permit application process, hoping to stop their state from issuing permits. They become experts in regulatory law and administrative procedure, on water, and on multinational water corporations. They learn that corporations own five percent of water "services" around the world, and are rapidly buying up publicly owned water systems. They discover that the largest water-bottler in the United States -- Nestle Corporation -- makes $1.7 billion per year peddling the water it sucks out from under communities.

Community groups hire lawyers, sometimes paying hundreds of thousands of dollars to fight a corporation's permit applications over years and years. But because the application process assumes that corporations have the constitutional right to take a town's water, the only contested issues are: How much corporate harm to the water supply and individual well can groups predict? And, how much harm will the regulatory agency -- in New Hampshire, the Department of Environmental Services (DES) -- declare acceptable?

Now and again, a regulatory agency rejects a corporation's permit application. The citizens group celebrates, only to see the corporation return with a new and improved application. Or, they watch helplessly as the corporation goes to a neighboring town, targeting the same aquifer -- this time with a slanted pipe to access the water.

Sounding the Alarm

Barnstead residents Gail Darrell and Diane St. Germaine had joined with neighbors to prevent corporate-hauled sewage sludge from being spread on farmland in their town. They worked hard to educate their neighbors about this life-threatening practice. Their struggle came to an end when the person on whose land the sludge was to be applied changed his mind. In the process, they learned that the State of New Hampshire regarded corporate sludge spreading as perfectly legal.

They also learned that, like all municipalities in the state, Bamstead was vulnerable to corporate directors from anywhere. No matter what a corporation wanted to impose -- hazardous waste incinerators, quarries, toxic dumps, super-duper retail complexes, microwave towers -- a handful of corporate directors were empowered to use law to overrule community majorities.

That didn't seem fair to Darrell. In fact, it seemed entirely anti- democratic... and certainly incompatible with the ideals and traditions of "Live Free or Die" New Hampshire.

Alerted that Barnstead's rich aquifer was on a water corporation's hit list, Darrell and St. Germaine, with help from Bruce Shearer, Sharon Hodgdon, Carolyn Namaste, Stuart Liederman, and others, began to look at Barnstead's water situation and examine the operations of global waterbottling corporations. Then they started sharing their findings with neighbors, many of whom began to voice their own concerns.

As a way of engaging the entire town and spurring Barnstead elected officials into action, they wrote a bill for consideration at their March 2005 Town Meeting. Warrant Article 22 was a general call to arms, instructing the Town of Barnstead to protect the community's ground water. The Article also directed their town government to seek assistance from state and federal agencies, conservation groups and neighboring communities to protect their water.

The Selectboard supported this Article, and Barnstead citizens voted it into law. The town and its elected officials were committed to doing something. But what? Neighboring municipalities had pressured and begged state legislators and other elected officials to intervene against water corporate invasions. They had invested years and dollars in permit application battles with regulatory agencies, but the water corporations kept emerging triumphant. So the next step was to look at what communities around the country were doing to resist invading corporations -- and to see what worked.

Enter Catalysts

Ruth Caplan is national coordinator of the Alliance for Democracy's Defending Water for Life Campaign. Having been involved in many community struggles against a variety of corporate invasions, Caplan had been reflecting on her labors. Participating in a Daniel Pennock Democracy School weekend, Caplan was excited to find other organizers and community activists also rethinking past campaigns. Some, she found, had actually begun to refashion their groups' civic work.

Democracy Schools were launched in 2003 in Pennsylvania by attorney Thomas Linzey and historian Richard Grossman of the Community Environmental Legal Defense Fund (CLEDF). The Schools are safe places where people study today's government-by-corporations while exploring United States histories -- especially people's struggles for rights and self- governance.

The Schools also tell the stories of Pennsylvania townships that turned their backs on their state's regulatory agencies. Instead of participating in stacked-deck permit application processes, growing numbers of townships have enacted laws to stop corporate assaults. These laws also undid constitutional precedents and state rulings enabling corporate directors to use law against people and communities.

"What impressed me most that weekend," said Caplan, "was learning how Thomas and Richard were working with rural, conservative, Pennsylvania communities that wanted to stop corporate hog farms from coming in. It was a 'Just say NO' approach to the corporate directors pushing those hog factories. I was already organizing in New England around corporate privatization and commodification of water, so I began looking for ways to apply what I had learned at the School."

Two New Hampshire residents -- former state lawmaker Bill McCann and Olivia Zink -- had been sounding the alarm about water corporations stealthily slipping into the state. In 2005, Caplan encouraged Zink and McCann to attend a Democracy School at Wilson College in Pennsylvania.

Zink, a graduate student in the Community Economic Development program at the University of New Hampshire, serves on the board of the New Hampshire group Save Our Water. Having followed community struggles against giant global water corporations, she noted, "Our state agencies did not protect the people of the town of Alton. On the contrary, the Department of Environmental Services (DES) permitted a water corporation to siphon 250,000 gallons of water per day. So why would people in Barnstead or any other town believe that DES would protect them?

Reframing the Work

Returning home from the Democracy School, and eager to find towns wanting to go on the offensive against water corporations, Zink and McCann joined Caplan in exploring local control options in New Hampshire. In Barnstead, the trio ran into a receptive Darrell and her neighbors. Over many conversations, they shared communities' experiences with regulatory agencies. For example, they observed that citizen groups start off assuming that regulatory agencies like DES are stewards of the environment. Only after months and sometimes years of effort do they learn that, when those public officials ride in on white horses, it's to save a handful of corporate directors from local majorities shouting "No." The Democracy School grads also passed along some of the little- known histories that resulted in corporate directors gaining constitutional power to deny people's fundamental rights.

Gail Darrell and crew concluded that communities cannot stop water corporations by intervening in corporate permit application processes. Experience made clear that even should a permit be denied (as had occurred in Barrington), there was nothing to stop a corporation from filing a "corrected" application (as had also occurred in Barrington), or from setting their sights on the next to.

Zink and McCann confirmed that "well-settled law" empowered corporations to engage in any lawful business. And it was clear that New Hampshire had made it lawful for corporations to extract and sell communities' water.

At a Selectboard meeting to consider how to carry out Warrant Article 22, Darrell and St. Germaine described some of what they had been talking about with McCann, Zink, and Caplan. Impressed, the Selectboard invited McCann and Zink to make a presentation at its next meeting. Intense interest in this presentation prompted the Planning Board to call a special meeting to talk about what Barnstead could do to prote t its groundwater. At tF, went, several speakers referred enthusiastically to the work of the Community Environmental Legal Defense Fund. They suggested that the Town invite staff attorney Thomas Linzey to Barnstead. Shortly thereafter, the Seleetboard sent for Linzey. Breaking Bread

Linzey appeared before the Barnstead Selectboard and a packed Town Hall on October 23, 2005. He told the crowd that the regulatory system worked just fine -- for corporations. He described majorities in Pennsylvania townships, facing unwanted corporate invasions, asserting local municipal control by passing their own laws. Almost 100 townships Linzey said, had banned corporate hog and chicken factory "farms," along with the spreading of sewage sludge on farmland and reclaimed coal mines.

To illustrate why Pennsylvania townships had also passed laws declaring an end to corporate constitutional authority within their jurisdictions, he offered a little history. Starting with the United States Supreme Court decision in the 1819 Dartmouth College case, courts had been wrapping corporations and their directors in the Constitution. In that famous case, the Court nullified a New Hampshire law asserting public control over education, and "found" corporations in the U.S. Constitution. This caused great outrage and opposition in New Hampshire and around the nation. But after the Civil War Linzey explained, courts and state legislatures have steadily given even more constitutional privileges to corporations.

There was a different history Linzey wanted people to know. Pulling out the New Hampshire Constitution, he read: "All government of right originates from the people, is founded on consent, and instituted for the general good. ...and that government [is] instituted for the common benefit, protection, and security of the whole community, and not for the private interest of or emolument of any one man, family, or class of men." [Article 1, 10]. How democratic is it, he asked, when state and federal governments enable a small class of men to usurp the people's governing authority? To deny the consent of the governed?

Following a spirited discussion, the meeting recessed, and people turned to the hearty food townspeople had prepared. Many felt a special buzz in the air. As the town broke bread together, Zink felt "a real participatory aspect to it all." Compared with other public meetings she had attended, "you really felt part of a community," she said. "Something had clicked. From then on, new strong relationships would be built, as people started doing the hard work of democracy."

When the Selectboard called the meeting back to order, Linzey put it to the elected officials: What do you want to do? They replied: Draft us an ordinance. Selectman and Vietnam Veteran Jack O'Neil told Linzey, "We are walking point with you" -- an army term meaning that elected officials would take the lead and face the consequences.

The Legal Defense Fund's' draft ordinance stimulated many conversations, along with suggestions for revision. When the local editing had been completed, the organizers came to the Last phase of the work -- making law. They realized that to pass a Warrant Article directed at corporations and at constitutional precedent, they would need to involve large numbers of Barnstead citizens in discussions about the process. So they undertook the labor- intensive process of talking one-on-one and to small groups. And they worked with Caplan, Zink, and McCann to organize a second town forum featuring Linzey and Richard Grossman.

On Friday, February 23, 2006, another packed Town Hall was the site of a spirited discussion about the right of communities to pass laws reflecting their wants and needs. During the rest of the weekend, Linzey and Grossman led a Democracy School in downtown Barnstead for about twenty residents and neighbors. Democracy School, said Darrell, revealed "so much history that people need to know to judge where they are today. Without that missing history, you can't see how the corporations wield their power." After the School, graduates fanned out across Bamstead to talk with friends and neighbors about why a Warrant Article asserting local authority over corporations was the only way the townspeople could protect their groundwater and their rights.

Making Law

Endorsed by a unanimous Selectboard, Warrant Article 31 -- The Barnstead Water Rights and Local Self-Government Ordinance -- was presented to the Town Meeting on March 18, 2006. The Article drew on the Declaration of Independence, declaring that governments are instituted to secure people's rights, and that government derives its just powers from the consent of the governed. Asserting that water is a common resource essential for the functioning of the ecosystem and for the residents of Bamstead, the Article also asserted that corporatization of the town's water against the majority's will would usurp the people's governing authority.

The Article's "Statement of Law" was short and sweet: It simply prohibited corporate water withdrawals for resale. It also banned corporations from using U.S. or New Hampshire constitutional provisions to interfere in community governance or deny people's rights.

Darrell told the Town Meeting that the Article was "totally citizen- driven and citizen-produced." Another speaker declared that "No one has the right to steal our water." As questions came up, Darrell, Shearer, and the Selectboard offered clear and reassuring answers. Finally, to cries of "Call the question!," the Town Moderator put Warrant Article 31 to a vote-136 residents vigorously shouted "yea," to a single "nay."

With this vote, Bamstead became the first municipal government in the United States to ban corporations from pumping out a drop of water for sale elsewhere. And it became the third municipal government, after Porter and Licking Townships in Pennsylvania, to decree that, within their jurisdictions, corporations may wield neither state nor federal constitutional powers.

"This Ordinance," said Selectman Gordon Preston, "is not a typical ordinance. This is not about land use, but about something much more fundamental." After watching the townspeople deliberate and vote, Preston declared "Success will be gauged by how far we can spread this to other communities. If this incredible example of democracy remains just in Bamstead, then that's fine for our community. But without similar efforts and laws in neighboring towns, we'll all still be vulnerable to the corporate water bottlers who so easily claim our water for their own."

For more information, contact the Community Environmental Legal Defense Fund (CELDF) at info@celdforg or by calling 717-709-0457.

Susquehanna is the newsletter of CELDF.





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