Charlie Fisher is seeking a variance from local zoning to establish a water mining operation on a farm owned by his mother on Reading Road. The hearing began over a year ago, and has been covered in previous stories in The Post. In the interim, the author of this article, a Planning Board member, was appointed to the Zoning Board of Adjustment that is hearing the Fisher case. This came about with the passing of Ron Bond this spring after a long illness. Ron was the liaison between the Zoning and Planning Boards, and the present author was appointed as his replacement.
Mr. Fisher’s attorney, George Dilts esq. requested that I recuse myself, maintaining that the previous articles in The Post indicated an inability to be impartial in the Fisher case. On the advice of the Board’s attorney, I did recuse myself. Though we all wear many hats, I agree that it in this case I should choose one or the other: either to write about this case or to vote on it. I choose to write.
A gallon of water weighs a little over eight pounds. It seeks its own level and is naturally reluctant to flow uphill. In the room full of experts called to offer testimony in support the Fisher water pumping operation, these homely facts sometimes disappeared from sight, as did some of the simpler arithmetic operations.
The applicant’s expert hydrogeologist, Vince Uhl, testified that according to his measurements, stream flow on the site is seasonally variable, from 5 to 44 gallons per minute.
One gallon per minute is 1,440 gallons per day, so Mr. Uhl’s estimated range of 5 to 44 gpm equals from 7,320 to 63,360 gpd. This is the amount of surface water that Mr. Uhl estimates is available at the site, varying from 7,320 gpd in dry weather to a maximum of 63,360 in wet seasons.
Mr. Fisher wants to remove 43,200 gallons per day from the site, six days a week year round, in wet weather or dry, load it on trucks, and sell it. At the June 11 hearing Mr. Fisher testified that he had not yet decided on a vendor to sell to.
To facilitate collection of the water, “spring boxes” will be built in two streams. An April 2008 “Supplemental Hydrologic Report for Spring Meadow Farm”, prepared by Mr. Uhl, includes a conceptual plan of the spring box design.
NJDEP is requiring Spring Meadow Farm to sustain wetlands and the stream corridor during periods of dry weather by providing a minimum passing flow of 3 gpm to be monitored downstream from the “spring boxes”. A letter from Township hydrogeologist Matt Mulhall states: “As discussed in earlier reports, the wetlands near the springs are maintained by the upward flow and discharge of groundwater. The pumping of the well reduces the pressure of the upward flow. The passing flow requirement imposed by NJDEP was established to ensure water is available for the wetlands if groundwater discharges are reduced or eliminated. Ideally, the passing flow should be maintained by the springs on or near the site, and not by diverting 3 gpm from the well”
Betsy McKenzie, a professional planner hired by Delaware Township to represent its interests in these hearings, asked Mr. Uhl whether Mr. Fisher’s proposed operation would require pumping water from a well to make up that passing flow in dry weather. Mr. Uhl testified that it would not: “everything is taken care of by gravity feed”. Ms. McKenzie appeared to doubt this testimony, but Mr. Uhl stuck to it, and the discussion passed on to other matters, leaving the meaning of “gravity fed”, as it applies here, temporarily up in the air.
The conceptual plan of the “spring boxes” shows an underground “gravity drain inlet”, essentially a pipe, that fills a “drain junction box”. These are not engineering plans, are not drawn to scale, and their location on the site is not specified. In the junction box sits a pump. An arrow points “to water storage”, which an engineering plan shows will be three silos.
Topographic maps filed with the application, prepared by the firm Bohren and Bohren, dated January 23, 2009 show the spring boxes and pump to be 336 feet above sea level. Over 400 feet away from the spring boxes, and 24 feet higher in elevation, the water storage towers would be built. Each is 35 feet high, with an inside diameter of 12 feet and a capacity of 31,315 gallons. The base of these three towers is at an elevation of 360 feet, the top of the towers is at an elevation of 395 feet. Water from the streams would be pumped uphill a total of 59 feet to fill the tanks. Pumps with a total capacity of 30 gpm would have to operate twenty four hours a day to bring 43,200 gallons of water from the stream, through the spring boxes, uphill to the silos. Gravity fills the spring boxes only, but the heavy lifting is done by pumps operating around the clock.
Neither Mr. Uhl nor Ms. McKenzie appeared comfortable with the idea of augmenting the passing flow of the stream by pumping water from a well. When Ms. McKenzie asked Mr. Uhl where the water for the passing flow would come from, he would answer only “everything is done by gravity feed”.
The numbers don’t appear to add up in support of Mr. Uhl’s claim. It’s hard to see how he can have a stream running at five gallons per minute, take away thirty and leave three. But Mr. Uhl maintained to the end of his testimony that the project was entirely “gravity fed”, that well water would not be pumped to make up the passing flow, and that was the last word heard about the matter at the June 11 meeting.
The Township Hydrogeologist’s Report
At hearings in 2008, Mr. Fisher sought to be exempted from a Township well testing ordinance. The Board voted to not exempt Mr. Fisher and to require the tests. These were completed successfully.
The Township’s expert hydrogeologist Matt Mulhall of M2 Associates, a Hampton, NJ, firm, evaluated the Uhl well test report with respect to the impact of the Fisher operation on neighbors’ wells and the amount of water in the natural basin surrounding Cold Run on the Fisher farm. He reported his findings in a May 1, 2009 letter to the Board of Adjustment.
The well test involves pumping from a well on the applicant’s property into the nearby stream an amount of water equal to twice the amount the neighbors are calculated to use during a 24 hour period, and monitoring the water levels in wells of any neighbors who ask to participate, to determine whether levels are reduced by the Fisher pumping. Mr. Mulhall concluded that Fisher passed this test.
Determining the possible impact of removing 43,200 gpd from the Cold Run Basin, the 785 acre area that drains into this creek, was another of Mr. Mulhall’s concerns. The dependable yield is calculated as one fifth, 20%, of the natural replenishment. Assuming Mr. Fisher’s withdrawal of 43,200 gpd, Mr. Mulhall calculates the dependable yield in a drought year in the Cold Run drainage area as 64,370 gpd. The formula he uses is 82 gpd/acre. 82gpd x 785 acres = 64,370 gallons per day. The Fisher operation would take 43,200 gpd, or two-thirds, 67%.
Mulhall complicates this equation by inserting the consideration of land ownership and preservation status, and making mistakes. He writes:
“We further narrowed the natural replenishment evaluation by only considering recharge and the dependable yield of the site and adjacent lands preserved by the Fisher family. [Emphasis added]. The Spring Meadow Farm site and property preserved by the Fisher family across Reading Road (Block 22 Lot 1) combined total nearly 139 acres. We understand that other properties may have been preserved by the Fisher family but we are unfamiliar with these properties and, therefore, only included the two parcels in this evaluation”.
Mr. Uhl commits the same “personalization” in the power point presentation he submitted to the June 11 Board of Adjustment meeting, when he mentions the acres of farmland preserved by the Fishers. A given area of land will recharge the water it will, all else being equal, independently of who owns it. The Zoning Board of Adjustment is considering a variance that will stay with the land after the current landowners are gone, so the current ownership of the parcel is in that sense irrelevant.
Mr Mulhall makes another error. The 88 acre parcel on the NE corner of Reading and Locktown-Sergeantsville Road is not owned by the Fisher family. Henry and Harriet Fisher sold it in fee simple, in 2001 for $1.12 million, to the State Agricultural Development Committee. It was SADC who preserved the property and subsequently sold it to Thompson Land Management Company. The only land now owned by the Fisher family in the Cold Run basin is the 51 acre Spring Meadow Farm. It’s unclear why Mr. Mulhall made his calculation excluding lands he thought had no association with the Fishers, but by that logic he should have eliminated the 88 acre parcel, and calculated recharge, or dependable yield on the 51 acres remaining.
Focusing only on the land owned by the Fishers, the dependable yield would be calculated: 51 (acres) x 82 gpd (dependable yield) = 4,182 gpd, which is less than one tenth of the amount Fisher wants to withdraw. If every landowner in the Cold Run basin extracted water at the same rate as Fisher, the entire measurable flow of Cold Run would be privatized, and the smallholders relying on it for their well and septic would see their property values dwindle.
Mr. Uhl’s power point presentation to the Zoning Board at Thursday’s hearing concluded by stating that “the Fisher family has preserved 309 acres in the watershed”, conceding that 170 acres was in the Rosemont Valley and would have no impact on water supply in Cold Run, concealing the fact that 88 acres along Cold Run was preserved by another entity, and implying that the 51 acre Spring Meadow Farm is preserved: it is not.
Mr. Uhl may have made this last claim at the prompting of his client. As a hydrogeologist, Mr. Uhl is not an expert in local land preservation.
Board member Scott Emmons asked Mr. Uhl what would happen in dry weather, whether Mr. Fisher would stop pumping if the neighbors’ wells or the wetlands ran dry? Mr. Uhl assured him that pumping would stop. Planner Betsy McKenzie commented that monitoring of the amount of water diverted could be “part of the final agreement”. This and other monitoring of the project would require involvement of the Township government.
None of the Township’s experts – the planner, the hydrogeologist, the traffic expert – fully knows what would be involved if the Township should have to regulate an industrial water operation. And there is no one attending these meetings on behalf of the Township who takes an overall view: Township Committee consider it prudent to stay away from Board of Adjustment meetings, to preserve the latter board’s autonomy.
Nevertheless, a recent example shows the difficulty the Township can have in regulating an industrial operation. After years of neighbors’ complaints about the Trap Rock Quarry’s repeated violations of the ordinance supposed to govern its operations, the Township has established a permanent Quarry Compliance Committee and Quarry Reclamation Plan Committee. These are staffed by volunteers, whose time is valuable, and periodically involve billable hours for expert consultants, which the quarry periodically disputes.
Cross Examination of Mr. Uhl
There is an objector to the Fisher application, Mr. Robert Hornby, whose home is across the road from the driveway where the trucks would enter and leave. He is represented by John Lanza, esq., who cross – examined Mr. Uhl. Under New Jersey law, the Zoning Board of Adjustment is a quasi-judicial board. If either side contests the verdict, the case will not be retried, but the trial record will be examined by the Appellate Court. For this reason, it is important for both sides, Mr. Fisher and Mr. Hornby, to get the facts they deem important on record. The Board’s Attorney, Steve Goodell, administers the oath, and each witness promises “to tell the truth the whole truth and nothing but the truth so help me God”.
For the past three years the New Jersey Water Supply Authority (NJWSA) has been studying the water quality and quantity throughout the Lockatong and Wickecheoke watersheds, of which Cold Run is a tributary. Mr. Lanza asked Mr. Uhl whether he were familiar with the NJWSA’s “Lockatong and Wickecheoke Creek Water Quality and Flow Monitoring Report”, which was prepared as part of the NJWSA’s watershed protection and restoration project. Mr. Uhl demurred. Mr. Lanza forged ahead. “Are you aware of the statement in this report that ‘much of the Wickecheoke flow, up to 44%’ during periods of low flow, originates in the Cold Run Creek? Mr. Uhl couldn’t say. Whereupon Mr. Dilts objected to the line of questioning, and the question was left unanswered.
Mr. Uhl indicated that his study of the Wickecheoke Creek was partial, limited to the area around Fisher Farm. He admitted no knowledge of the report, its contents, or even of the NJWSA’s existence. The author of the NJWSA report, Todd Kratzer, is also on the Kingwood Township Planning Board, where Mr. Uhl, a Kingwood resident, serves as hydrogeologist.
What is clear from the NJWSA report is that the lower Wickecheoke, downstream from the Covered Bridge, already has elevated levels of fecal coliform bacteria, even upstream from the point where Rose Brook joins it, bringing the effluent from the Delware Township sewage treatment plant. The lower Wickecheoke is also a popular area for recreation, wading, and fishing.
Proverbially, “the solution to pollution is dilution”. Considering that the main branch is already polluted, reducing the amount of base flow can be expected to increase the levels of pollutants.
The Traffic Experts’ Testimony
The June 11 hearing also involved expert testimony about the truck traffic that would be generated by the proposed water mining operation.
Harold Maltz of Hamal Associates presented himself and was accepted as a traffic expert. He testified on behalf of Mr. Fisher that the number of trips, 9 trucks entering the site empty, and 9 trucks leaving the site full of water, 6 days a week, would be less than the alternative which Mr. Fisher says is available for the site, building 4 to 6 houses on the 4 approved building lots that currently exist there.
Mr. Maltz submitted a traffic count based the four hours he spent on two mornings and two afternoons standing at the intersection of Ferry Road and Locktown-Sergeantsville Road counting vehicles.
The Township has also hired a traffic expert, Maurice Rached of Maser Consulting in Hamilton, NJ, to represent its interests. Mr. Rached’s report noted that a circulation plan for the water tank trucks to be used by Mr. Fisher, which are 8’ wide and 58’ long, had not been submitted, and recommended removing roadside vegetation to provide longer sight distances.
Mr. Maltz’s testimony did not mention the weight of the trucks, but Board of Adjustment member Michael Manley asked how their weight would compare to the cars generated by housing, or the trucks used by the former dairy operation that existed on the farm over a decade ago. This was beyond the expert’s knowledge, and he referred the question to his client. Mr. Fisher said he thought the trucks would weigh about 40,000 pounds. Cross-examination of all witnesses established that the actual weight of the loaded trucks would be more nearly 67,400 lbs, given 4,800 gallons of water at 8 lbs./gal. and assuming a truck with an empty weight of 29,000 lbs.
Mr. Maltz reported that the water operation would generate 18 trips a day by “large trucks” along Locktown – Sergeantsville between the Fisher Farm and the intersection with Route 523. Mr. Manley asked what the road surface was made of. Mr.Maltz did not know, nor did Mr. Rached, but Township Engineer Peter Turek reported that it was “years and years of tar and chip”.
Cross Examination of Mr. Maltz
Mr. Hornby’s attorney Mr. Lanza asked Mr. Maltz about the size of the trucks Mr. Fisher’s operation would require, compared to the trucks he observed during his traffic study.
Mr. Lanza: During your traffic study, how many 18-wheelers did you observe? Mr. Maltz: I counted four hay wagons. Lanza: And how many 18 wheelers? Maltz: I observed schoolbusses stopping at various times. Lanza: And how many 18 wheelers? Maltz: I counted 6 dump trucks.
This continued until Mr. Maltz’ exhaustive recounting of the vehicles he had seen revealed that there are currently no 18-wheelers operating in the area, though he could not bring himself it to admit it for the record.
After the conclusion of cross – examination, Chairman Marty Siecke opened the floor to public comment. Township Resident Ralph Dellabadia said he was a professional truck driver, stated his opinion that the heavy trucks would damage Locktown – Sergeantsville Road and Ferry Road, and asked the Board who would pay for the maintenance, the applicant or the Township? Mr. Dellabadia gave the example of the heavy trucks operated by Trap Rock Quarry, and the damage they do to CR 523.
Chairman Siecke told Mr. Dellabadia that his comment would have to be phrased as a question for one of the expert witnesses. None of these knew the answer to Mr. Dellabadia’s question, and there was no one else on hand who could answer.
Though it has scarcely been mentioned at the meetings, the Fisher application has a broader context. Under the law, the variance runs with the land. If Mr. Fisher or his heirs sold the property the water mining operation would go with it, into the hands of the buyer. A number of large multinational corporations who sell bottled water – Nestle, Perrier, Indosuez – are already active in this area. Some have established reputations of pumping streams dry and continuing pumping ground water even while involved in litigation seeking to make them stop.
Criteria for Granting a Variance
New Jersey Municipal Land Use Law (MLUL) establishes “positive and negative criteria” for granting “d” variances (the kind that Fisher is seeking). The negative criteria consist of two elements: No relief may ever be granted unless it can be done (1) without substantial detriment to the public good, and (2) without substantially impairing the intent and purpose of the zone plan and zoning ordinance. “Substantiality” cannot be determined in a vacuum; rather, its determination relies on balancing the benefits and detriments of a given variance proposal. The greater the benefits to the community, the greater the detriment must be to balance or overweigh.
The fifteen positive criteria are more varied, but the first on the list sets the pattern for the others: “To encourage municipal action to guide the appropriate use or development of all lands in the State, in a manner which will promote the public health, safety, morals, and general welfare”.
The next hearing will be on Thursday June 25 at 7:30 PM at the Delaware Township Municipal Building.