BZA delays conditional use decision

Concerns welled up from residents who filled the room to speak against a conditional use transfer considered by the Owen County Board of Zoning Appeals (BZA) until the new year.

The request was required as part of a change of ownership for a commercial water pumping enterprise on Pottersville Road.

The matter was ultimately tabled.

BZA President Sandra Calvert and members Beth Wood, Chad VanRyn and Alfio Saitta were all present at the meeting. Member Corbin Abrell was not in attendance at the Dec. 22 meeting.

The application came from BlueTriton Brands.

In 2021, One Rock Capital Partners and Metropoulos & Co. purchased Nestlé Waters North America and formed BlueTriton Brands. The company is in the process of merging with Primo Water to create Primo Water Brands. The company is responsible for bottled water brands such as Poland Spring, Arrowhead, Deer Park, Ice Mountain, Primo Water, Saratoga, Canadian Springs, Crystal Springs, Sierra Springs, Pure Life and Splash, among others.

BlueTriton was represented by local attorney Richard Lorenz.

"The application is for a conditional use, and it's because of the fact that there would be a change of ownership in this particular case. In 2017, this board, members here and other predecessors, had the opportunity to hear the application at that time, and they approved the conditional use at that time for Hydrology, and that was for essentially the extraction and distribution of water from the wells on that property and all," Lorenz said, adding that he reviewed the transcript from 2017 as well as the last BZA meeting. "I think many of the concerns are something I would call in Owen County the fear of change and all; that something is going to happen that is going to do harm or injury to someone or something. I don't think those things are present in this case. Some of the concerns about the amount of water being removed are totally limited by the voluntary agreement by the entity to keep the extraction at 50,000 gallons per day and all. Even the threshold for the state DNR is at 100,000, so you're half of that quantity."

Lorenz said that the sale and transfer is time sensitive, needing to be finished by the end of 2025.

He said they considered applying to just rezone the property.

"The fact of the matter is the application for conditional use actually gives the BZA more authority than it really would have over the rezone. The rezone would open it to any commercial enterprise thereafter without having to even come to the board except for the site plan and all. So you really have a willingness on the part of the applicant to limit its operations," Lorenz said.

Lorenz said that he spoke with the county highway department to ensure that the proper turnaround changes were made.

He also encouraged the BZA to consider the concerns brought forward in 2017 moot for this application.

"That's not before this board at the present time. Whatever those concerns were, I would suggest to you that they're substantively incorrect and legally incorrect. But the fact of the matter is the board has previously authorized this particular use, and it continues in use today and will tomorrow. That's not going to change. So those particular arguments are out of bounds for this particular matter," Lorenz said.

He added that a requirement to give back to the community was one thing that was discussed.

"I would like to encourage the board to think very pragmatically about what's happening here. You have a very significant buyer here who would be coming into our community much like Boston Scientific and Cook Urological that will automatically by its own initiatives contribute to the community. The current owners have already set up accounts with the community foundation in order for them to contribute to the community," he said. "It's also very dicey to think in terms of what do I have to give back to the community in order to get a zoning variance of any nature. It sounds like a quid-pro-quo that you've got to be very careful about in terms of how it appears to be. It's not a matter where you go in and buy a zoning application."

He said that the board has a standard for findings for the applications.

"It's not a matter where we come in and have an overall opinion that somehow this is not a good thing. We don't like water of this nature, or we don't like this particular jewelry store or that number of gas stations. That's not what we're doing in this particular proceeding or in actually any BZA matter. What you're trying to do is determine whether the applicant has met the criteria for the application," Lorenz said.

He said that it is "going to be particularly helpful to the community at large," citing that every convenience store in the county carries the water, with it coming back to the community, which is drinking it.

"We understand why people would be fearful that something would happen to their wells or whatever, but remember on the well on that individual property is privately owned and is able to be used. It is not a community public resources, and there are arguments that the State of Indiana has said we, state of Indiana, will control how much is take from the ground and under what circumstances that the aquifers are in the jurisdiction of the state and not of the county," Lorenz said.

Arlene Vincent, Senior Natural Resource Manager at Primo Brands, spoke next saying that they submitted letters and testimonials from other communities in which the company operates in. She also cited examples of the company's emergency disaster response in Indiana and Kentucky in which the company sent water to the impacted area, saying the company has a long track record of doing so.

The matter was then opened for public comment, all of which was against the conditional use.

One of the comments came from Tom Parrish who resides next to the site.

"As Mr. Lorenz indicated, there's a lot of things that Blue Triton's doing, and you know, all I'm hearing is they're taking resources from Owen County. They're extracting the water, sending it to Greenwood," he said. "So basically at this point, you know, as I stand, I'm still opposed to this. I don't like large corporations coming into Owen County and taking the finite resources from our tax base."

Jacob Balash also spoke.

"I would be against pumping any more of the water out. I just think this is a finite resource, and this is just exiting our county and there's only so much of it. So then we have wear and tear on our roads which is not wonderful and then the depletion of water," he said. "I would rather this not happen at all, and I'd love for it to just be stopped."

The potential for weight in excess of the limits for county roads and bridges came up several times. The company hauls the water in 6,000 gallon tanker trucks, which weigh between 20,000 and 35,000 pounds or 10 to 17.5 tons when empty, which exceeds the 16,000 or 8 ton limit that a member of the public claimed the county has on Pottersville Road. Water weighs 8.34 pounds per gallon, meaning 6,000 gallons of water along weighs 50,040 pounds or just more than 25 tons. Combined, the weight of the tanker truck and the water could be between 70,000 pounds or 35 tons and 85,000 pounds or 42.5 tons.

Shea Finnegan was next to speak and asked questions.

"I just have questions I guess, and I don't feel like we're getting 100 percent transparency," Finnegan said. "As far as how is this benefitting out community, I'm still not clear in what way this is benefitting our community. What I do know is yes, there are tanker trucks on Pottersville Road, which just by the sheer weight and frequency of use destroys the road over time. And that is a county concern because that's who will be responsible for repairing the road."

Finnegan also cited concerns over 50,000 gallons per day being drawn.

"The average household uses about 300 gallons a day, conservative estimate. And in that way, that would be 166 households per day that they're taking that much water out of our aquifer. It's a finite resource," Finnegan said. "I have significant concerns, and yeah we may be drinking the same water that comes out of it at the local store. I don't want to have to pay for water. I have water, you know? There's a well at my house. Water comes out of the faucet. That's the kind of water I want. I don't want purified water coming out of a plastic bottle that I then have to dispose of responsibly."

Finnegan also asked who monitors how much is taken out daily, who enforces that limit and who monitors the reports which are generated by the company without outside verification.

John Tucker was the next to speak.

"I was here at the 2017 meeting. Everything that was said has been violated. Everything that was said is wrong," he said, adding that in that meeting, the owner allegedly said they would take 6,000 to 12,000 gallons per month. "That has been violated big time, and they just want to keep continuing to violate. Maybe the board wouldn't have approved it. Maybe us neighbors would have complained strongly, more strongly against it had we know what was actually coming. What we were told and what has become is absolutely two different things. We feel lied to period. I feel like what was said meant nothing."

This was later called into question.

Tucker said that in the 2017 meeting, the stated use was allegedly for geological surveys to combine the water with dye to see where the water goes when it comes to holes and sink holes.

"He needed clean water for that. That was the original variance. That's what the water was for. Nothing was said about selling that water. Nothing was said about putting it in water bottles. None of that stuff was said," he said.

Wood said that the recorded conditional use from 2017 was approved for up to 50,000 gallons per day.

Jill Hudson raised concern about the self-reporting nature of the amount of water that is being drawn from the well.

In 2021, regulators from the California Water Resources Control Board found that Nestlé Waters North America was taking tens of millions of gallons yearly when their limited valid rights allowed approximately 8.5 million gallons per year in San Bernardino in addition to operating with expired permits. Controversies surrounding inadequate permits, environmental harm and community opposition also took place in Michigan, Maine and Canada.

"I have a really big problem with that. I feel like there should be better controls over that," she said. "I mean, if you tell me to self-report, I'll tell you how many pieces of candy I ate. You know, you can't trust me; I like candy."

Hudson pointed to the ties to Nestlé Waters North America.

"It's wrong on so many levels. I'm not afraid of change. I am afraid as a person who lives in Owen County. I am afraid of a $6 billion company coming in here and pushing their way around," she said.

Kevin Wright spoke, asking about an environmental impact study.

Wood said that there was a brief water study that was submitted.

"It seemed like from the study they couldn't really tell us what the impact would be. To me, I feel like there needs to be more studies that need to be done then if we're not exactly sure what the impact would be. They're kind of saying, 'Well, trust us and maybe in the future we could give you more information.' I'd like to have that information before there's a variance granted," Wright said. "I know they're on a timeline. They've got to have their stuff turned in by the end of the year, but Owen County has a timeline too. And I care a lot more about our natural resources than I do about a big company's bottom line."

It was then that Lorenz spoke to the issues that were raised, including that with the work being done by the highway department as part of a normal permitting process for the turnarounds and what the resolution from 2017 says.

"The other thing that's involved here is there's an obvious concern about whether or not the aquifer and the spring are adequate and all," he said. "I work for the Bean Blossom Patrick Water Corporation, which takes millions of gallons out of the aquifer yearly, and I know from my conversations with the DNR and from our resource people and IDEM that we have one of the largest aquifers in the state in our locale and out here. It's one of our major assets. Now that's not to say that it couldn't ever go dry. That's not the point. The point is that it is adequate now for all the resources that are drawn upon it and all and the DNR is the third arty involved here who is monitoring it, and you have the reports that are voluntarily provided by the entity, and you'll see that there are daily totals with in the last month or so where it's only 6,000 to 12,000 gallons. It's not 50,000 gallons a day. It's a limit on that and all."

He also addressed the self reporting.

"There's a meter that tells you how many gallons you're drawing out per day. That is the number that's going on there, unless you're willing to believe that everybody is just fraudulently filing these records every day and trust no one about anything, then you're in that ball game," Lorenz said.

He then addressed the matter of it being a large corporation.

"Sum total is we recognize the right for these people to raise this questions and make comment about the application, but I think it comes down to the practical reality. This has been a process that's been going on for eight years. The mergers of BlueTriton and its subsidiaries, parents and other mergers and all is beyond the scope of the BZA and beyond frankly my comprehension. These are just giant operations that are beyond the scope of thing and all. And I can't take the position that there is somehow some horrible awful thing about big corporations that they are automatically against community interest. I don't think that's true," he said. "I understand the fear, but it is untruthful in this matter and unfounded."

Vincent then spoke on the concerns. She said that they are not a foreign company as was alleged, that they are incorporated in Delaware and have two different headquarters, one for BlueTriton in Stanford, Connecticut and one for Primo Brands in Tampa, Florida.

"Before we even decide to purchase water from the site, which we've been doing again for over a year, we did extensive studies on that," Vincent said.

"The spring nature and purpose of this water use currently would not require this level of analysis," she read from the report.

The state of Indiana regulates through the Indiana Department of Natural resources (DNR) any facility that draw more than 100,000 gallons of water daily, regardless of if it is from ground or surface sources. Registration is required for these facilities. Anything below that threshold is not required to be registered.

"If there was this big increase, which is not what we're asking. We're asking for a name change. The site has been operation at the 50,000 gallon condition. There's been no complaints of any wells being impacted. I understand the concern, that the people are concerned about the future, but all we're asking for is what conditions have been approved and has been operating for the site as it has been operating," Vincent said.

It was also mentioned that the DNR has a program that will monitor residential wells.

"One last comment about roads. It's abundantly clear that roads in Owen County are not in good repair. I'd be happy to testify about that. But we are where we are, and truck traffic, particularly logging trucks, water trucks, the various semis that we have, all of the contribute to the problem with the roadways that we have. I think this board or the county in general would be hard pressed to stop all of the road traffic on trucks that might be exceeding the capacity of Owen County's roads. In fact, Owen County is in violation of state regulations on what its road capacity should be," Lorenz said.

The discussion, which included public comment and comments from the applicants, lasted nearly two and a half hours, before a brief recess was taken.

The newest BZA member, Saitta, was the first to speak on the matter.

"I think we've had a number of clearly outlined concerns by the community. You all have done your best to address those. I think the primary issue that's overriding this whole conversation is the speed at which you would like to conduct this transaction, which is something that's outside of the scope of [the BZA]. Those are not our concerns. We have other concerns," Saitta said, adding that the report from The Indiana Geological and Water Survey (IGWS) did not alleviate the concerns.

"At this time, we don't have the information that we need to be able to in good faith say that the request that you are submitting in fact meets the five criteria that we have to satisfy to effectively approve this variance, the ongoing variance. I think that's where we're kind of odds in terms of trying to both satisfy the public concerns and also address the application in the timely fashion that you all have requested," Saitta said.

Wood said she would like to have additional research and for Abrell who was not present at the meeting to be involved, as Abrell is also on the soil and water board.

"I think we can find a happy medium, and I'm sorry we can't make the time constraint. I'm hoping that you can work that out, but if we put certain stipulations on this, I don't see why we would not be able to reasonably make everybody happy," she said.

She moved to table the matter until there was further research.

One of the applicants said they would have to reassess. It was asked why that was the conclusion.

"The standards for the variance very clearly says the approval will not be injurious to the public health, safety and morals and general welfare of the community. The use and value of the areas adjacent to the property included in the variance will not be affected in a substantial adverse manner. So I mean those are just the first two," Saitta said. "I think you all agreed that it made sense to have an outside party look at the site and provide some sort of assurance that theses… we're not experts on water, right? So we had the agreement to have IGWS look at it. They came back with a report that is less than, obviously under very severe restraints, that is less than endorsing of what you all are doing."

Saitta continued, "This is not a personal thing. It's just we're asked to go up or down on something that we're not experts on. That's what came back from the third party, and as of right now with the information that we have in front of us, I don't want to speak for my fellow board members, but we just don't have… we all went out to your site. I can say that you all seem like super reasonable people. There was nothing nefarious going on there. It seemed like a very easy thing to assess in person, but we have a standard that we have to rise to. As of right now, we don't have what we need. At least I don't feel like I have enough to support your application."

VanRyn was the next to speak.

"My opinion is this pretty easily could be a problem for the neighbors, which is something that we have to consider. They're hauling twice the amount the weight at least, maybe even more than that, on our roads, which is not good for anybody in Owen County. What else do you need? To me, it's pretty clear this needs to be voted against, no. That's my opinion. I don't think we need to table. I don't think we need to drag it out. It needs to be done. They're still going to continue doing it. There's just not going to be BlueTriton doing it," VanRyn said.

Wood's motion died for a lack of a second.

VanRyn moved to deny the conditional use application. The motion was seconded by Saitta.

"I don't think we need to drag it out another month. I mean, it's not going to stop what's going on now, but it keeps it from being transferred to a new owner," VanRyn said.

Calvert also indicated that she would like to have Abrell's input and that she was not ready to approve it.

"I mean denying this application does not prohibit it them from reapplying with other materials and support or giving us time to consult with IGWS," Saitta said.

VanRyn and Saitta voted in favor of denying it, while Wood and Calvert voted against the denial, saying they would prefer to table it.

The motion did not pass because it did not have a majority.

Wood once again made a motion to table the matter and gather more information. This time, VanRyn seconded the motion, which passed unanimously 4-0.