NH Rep Judith Spang replies to Ken Eyring - defends the taking of water rights from property owners. Ken rebuts - Granite Grok

NH Rep Judith Spang replies to Ken Eyring – defends the taking of water rights from property owners. Ken rebuts

Earlier this week, I had put up a Letter by Ken Eyring concerning Gov. Lynch’s Water Sustainability Commission that without any authorizing legislation or statute, is in the process of taking away your water rights.  I wrote the following preamble to that Letter:

Did you know that there is an executive commission that was set by Gov. Lynch to talk about water?  No big deal you say – yes it is.  Many homes in NH, if not most, depend on the water on their land for wells – or to be more technically correct, under your land.  Common law has been that what resides under your land belongs to you.  Period.  How do you think all those “shale millionaires” are now rich?  Wildcatters and energy companies are paying big bucks to explore and to frack the natural gas that lays under their land – and because they own it.

This “Lynch’s Last Gift” (“LLG”) wishes to administratively change this.  No House debate.  No Senate debate.  Just poorly noticed “listening session” (mostly during the day when ordinary people are working – but certainly attended by those that have NO problem in determining that your water belongs to them, er, all of us – the Collective.  THEY may not own the water, but they, sure as shootin’, are going to be the ones that will make the rules on how you can (or cannot) use that water.

That is under your property.  That you paid for when you bought your property (know it or not).

Well, Ken got a return letter back from the Commission: NH Representative Judith Spang (Democrat from Durham in Strafford District 7, NH Rep since 1998) and presents the basic argument of “it’s for the common good” (another one of the basic Liberal philosophies, like “You don’t need that” and “But it’s good for you”):

Dear Ken,

I believe you are misconstruing the statements made by the Commission, which are pretty broad and not aimed at your private well, by and large.

I have been the Chair of the 6-year legislative Groundwater Commission that looked at many of the same issues.  We found that:

1. Groundwater Law in NH is based on Common Law, not statutory law. The common law (dating back to English Common Law) says unequivically that a riparian landowner has the right to “reasonable use” of water flowing under or abutting his land.  “Reasonable use” is a limitation: you cannot take so much water that you are depriving someone else who has riparian rights to the same groundwater or surface water.  Neither you nor a foreign water bottling company who may own the land next to you has the right to take so much water out of your (or their) well that it dries up abuttors’ wells.

2. When the Commission talks about the need for a water policy that respects the inter-municipal nature of water supplies, it is based upon the above legal principle.

3. The Commission also states that water policy must be based on science. That is, the aquifer feeding your well may extend over two other towns and many other private wells. Who among you should have the “right” to take as much as they like, to the detriment of others? How much should they be able to take? It requires knowing how much water is in that groundwater supply (aquifer).

4. Based on the above facts, it is clear what the Commission means when they say water is a shared resource, not something that belongs exclusively to one person accessing it through their own well.  Clearly, whether water is coming from private wells or a municipal well (or river) serving a whole town, when that water is gone, it’s gone. A person in town who waters his lawn may be drawing down your well.

6. Cost of water:  Okay, who is going to pay the costs of keeping that jointly-used water clean? Say, buying up land that is necessary for protecting its water quality? If we don’t know whose wells are tapping what underground water sources, shouldn’t everyone contribute to protecting those lands collectively? How is that money to be collected? Should everyone who has a well pay. Everyone who gets town/city water out of the same water supply?  and how would they be charged?

My point, Ken, is that the deeper you look into this water issue, the more you realize that you can’t say “it’s my well, so it’s my water” the way you say “it’s my private land”. The statements made by the Commission that you find offensive are actually based upon a more realistic concept of where your well water comes from and which other private well owners have an equal right to that same water.

I hope you will read through the Commission’s writings again with the above in mind, and that this helps.

Well, Ken, even with being the quiet measured person he is, was not about to let that pass by.  At all (reformatted a bit, emphasis mine):

Dear Representative Spang,

I appreciate your taking the time to reply, but you have misconstrued my previous email.  Although you addressed many different aspects of what you, yourself, believe the Water Sustainability Commission (WSC) is planning… little of what you said addresses my concerns.  We both agree that water and riparian rights in NH provides for landowners the right to “reasonable use”.  “Reasonable use” means a landowner cannot deprive someone else who has water and/or riparian rights to the same source of water.

I find it interesting that we are in agreement regarding these rights, because from here we differ greatly.  I prefer to refer to the Constitution and the Rule of Law to ensure the quality of my water. You and the WSC seek for the State to assume control of all water on behalf of the collective – using equal access, equal cost and cleanliness as your justifications.  These are two, very fundamentally different points of views and goals.

I believe that it is the people who are the sovereign, and that We, the People, possess unalienable rights that come from our Creator – and not from government.  This is an important distinction;  Our rights come from God, therefore only a government bent on tyranny denies the people their rights.   The basis of my beliefs are articulated in the Declaration of Independence and our U.S. and NH Constitutions, which define the foundations of our freedom.  These documents acknowledge and protect our right to life, liberty and property — using the Rule of Law to enforce those rights.

From the NH Constitution; “All men have certain natural, essential, and inherent rights among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness.”  The issue here is water ownership.  My God given rights vs. State power.

You use a pretext to justify the confiscation of personal property – the fear of water scarcity and reckless behavior of property owners.  You have no evidence of either.

Representative Spang, if you feel strongly to forfeit your property to achieve your goals for social justice, that is your personal choice and I respect your decision.

John Adams warned:

“The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet’ and ‘Thou shalt not steal’ were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free.”

Our founding fathers were brilliant in their understanding of, and warning against, the desires of human nature.  Not only do you (and the WSC) covet my water… you justify confiscation by dismissing my ownership of it.  As the Chair of the 6-year legislative Groundwater Commission, you said “the deeper you look into this water issue, the more you realize that you can’t say ‘it’s my well, so it’s my water’ the way you say ‘it’s my private land’.”

This is the Live Free or Die state. Your goals and actions are a direct threat to our most fundamental right… the right to life – as human life cannot survive for more than a few days without water.  The deeper I look into this contrived water issue, the more resolute I am in my conviction.  It is my well. It is my water. It is my private property.

Maureen Hart, who gave a presentation to the WSC, “Noted that Oregon had spent years figuring out how to implement sustainability and (is) now exporting experiences to China in consulting services.” Oregon water laws declare that all water is publicly owned.   Last week in Oregon, a man was sentenced to 30 days in jail and over $1,500 in fines for collecting rainwater for his personal use.  I would expect to hear of this story occurring in Communist China – but here in America?  Is Oregon the model and the vision for “sustainable” water laws as you and the WSC seek State ownership of water in NH under the guise of “sustainability”?

Here are just a few excerpts from WSC meeting minutes for your reference:

“Water Laws and Rights: Ensuring equitable allocation and access for social and ecological demand was discussed because it is part of sustainability.”

“Need to develop a collective sense of accountability for a resource so that people comprehend that sustainability can only be achieved with all working together.”

Need to view water as a whole entity rather than whether it comes from a public system or private well.”

Water is a state resource that belongs to the people – it needs to be worked on at that level.”

“Another suggestion was the need for a hard look at water rights and water laws in New Hampshire related to groundwater and access to water”.

Regulation of our life sustaining water translates into a direct regulation of our liberties, and reduction of freedom. I am deeply concerned that the WSC would seek the advice of someone who touts the oppressive Oregon Water Laws (that are being exported to China) as a model for New Hampshire.  I consider that to be a red flag.

Several states, including Utah, Colorado and Washington now regulate the collection of rainwater.

Thomas Jefferson warned:

“All tyranny needs to gain a foothold is for people of good conscience to remain silent.”

Where do these regulations stop?  This is where I draw the line.  On behalf of my family, my community and my state.  NH is a water rich state as confirmed by the WSCWe currently have a system in place that has provided an abundance of renewable water to the State of NH. Each local community already has the resources and structure in place to manage their water needs, and there are already mechanisms for state help when towns have difficulty with water, e.g. assistance when there is flooding (emergency plan); or droughts (drought management plan); or potential contamination (DES, etc…).   There is no need for greater State control.

“If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, An inviolable respect for the Constitution and Laws — the first growing out of the last.” –Alexander Hamilton

I hope you will read through the Commission’s writings again with the above in mind, and that this helps.


Ken Eyring