Polar Ice Water spring pumping, Wisconsin

On February 27, 2004, Polar Ice withdrew its application to bottle springwater in Langlade County.

Photo by Zoltan Grossman, Feb. 2004

Maps by Doug Cox, Menominee Indian Tribe of Wisconsin Environmental Department


CLICK FOR LARGER MAP
Trout Haven Hatchery Location

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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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Michigan tribes oppose Nestle/Perrier springwater pumping, 2002

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