Bailiwick News – February 23, 2018

Economic v. environmental impact: an agonizing neighbor-against-neighbor choice that Centre County citizens should move beyond, into win-win.

2.23.18 Bailiwick News

By Katherine Watt

In early January, the Centre Daily Times reported on CBICC (Chamber of Business and Industry of Centre County) plans to facilitate a Nestle Waters North America plan to open a groundwater extraction plant somewhere in Centre County, most likely in Spring Township.

The proposed extraction rate of 300 gallons per minute equals 432,000 gallons per day.

Since then, several area conservation groups including ClearWater Conservancy, Sierra Club Moshannon Group, and Nittany Valley Environmental Coalition (NVEC), have been working to learn more about the proposal and Nestle’s corporate record of water extraction in other communities.

Several members of NVEC have submitted document requests under the Pennsylvania Right to Know Law to Centre County public entities involved in the recruitment and project review processes, and the group has set up a website to house the collected documents at stopnestlewaterextraction.wordpress.com.

The proposed Nestle plan pits possible much-needed living-wage jobs and public tax revenue against the public’s right and duty to protect crucial water resources and high-quality cold-water fisheries for present and future generations.

Corporate investment packages can be structured to create decent jobs without undermining critical human life-support systems.

Let’s push our county government leaders to articulate and implement an ecosystem-supporting community development vision, and not be complicit in the extractive corporate model.

BACKGROUND

In December 1970, the US Congress adopted the Susquehanna River Basin Compact, in response to water pollution and over-usage of water in the basin, which includes territory in Pennsylvania, New York and Maryland, and supplies half the freshwater flow to the Chesapeake Bay.

The compact was published by the Pennsylvania legislature Susquehanna River Basin Commission in May 1972, and provides “the mechanism to guide the conservation, development, and administration of the water resources of the vast river basin.”

The Spring Creek basin, one of the headwaters, falls under SRBC jurisdiction as part of the West Branch Susquehanna sub-basin. All of our county water authorities must apply for permits to withdraw, consume or divert water from our highly networked ground and surface sources.

Spring Township Water Authority is one of those public entities.

The precursor entity – Pleasant Gap Water Company – incorporated in 1910, and was granted permission in 1945 to withdraw up to 100,000 gallons per day from the area around Axemann Spring, Armour Run, Lonebargers Run and Bruss Spring.

Those water sources flow into Gap Run, and then into the Logan Branch tributary of Spring Creek. The complex connections create steady flows of cold subsurface water into surface creeks and runs, key to maintaining the lower temperatures needed by cold-water fish populations, angler locals and tourists, and outdoor recreation businesses.

Spring Township Water Authority incorporated in 1967, adding Benner Township to its service area. In 1983 and 1984 – in response to the drought of 1980-1983, the Spring Township authority was authorized on an emergency basis to draw up to 300,000 gallons per day from the local springs and creeks, and later authorized for that same limit on a permanent basis.

In 1990 and 1991, the authority was notified that it was violating its permit, and moved to apply to SRBC for a permit allowing withdrawal of up to 600,000 gallons per day.

In September 1993, the SRBC approved the permit, stipulating: “the Commission reserves the right, based upon new findings, to reopen any project docket and make additional orders that may be necessary to mitigate or avoid adverse impacts or otherwise to protect the public health, safety, or welfare. Commission approval confers no property rights upon project sponsors.”

If the Nestle project is approved, the 432,000 gallons extracted per day will export more than two-thirds of the Spring Township Water Authority’s permitted daily withdrawal, out of the Spring Creek basin.

PROPOSED NESTLE PROJECT

Early November 2017

From the documents collected so far, the Centre County project appears to have hit the public government sector “several weeks” before November 28. According to Email 12 and Email 13 provided by Centre County via RTK, participants in the meeting (date and location unknown) included CBICC President Vern Squier; CBICC Vice President Jennifer Myers; Nestle Waters “Natural Resources Manager” Eric Andreus; Centre County commissioners; Kurt Knaus, Managing Director for Ceisler Media & Issue Advocacy firm (working with Nestle); and Centre County Administrator Margaret Gray.

The contents of the meeting as reflected in agendas, minutes and notes are unknown, despite having been specifically listed in the original request. These documents have been requested again in a follow-up RTK request.

We’ve since learned that Penn State Vice President for Finance and Business David Gray – Margaret Gray’s husband – also serves on the CBICC board of directors.

November 22, 2017

On November 22, 2017, the project appeared under “New Business” for the Spring Township Water Authority board meeting.

The minutes state:

“Nestle Water – Doug Weikel, Chairman, reported Nestle Water would like to purchase non-chlorinated water from The Authority. They are looking at other areas as well, however, with the new well site they are willing to pay for the pipeline and a replacement well in addition to the water. This would be a benefit to The Authority. They have submitted an Access Agreement to give them the right to have their contractors and consultants complete their own testing to prove the water is directly from a well non chlorinated etc. After some discussion, it was on a motion of John Schiffhauer seconded by Gary Catalano to approve ratifying the access agreement. Unanimously approved motion carried.”

We’ve since learned from public databases that Weikel is Director of Civil Engineering for Herbert, Rowland, & Grubic, Inc. (HRG), and has served on the Spring Township Water Authority since 2004.

November 28, 2017

On November 28, Centre County Planning Director Robert Jacobs met with Nestle Waters’ Andreus; CBICC’s Myers; and Centre County Administrator Margaret Gray, according to information in Emails 9 to 12 from Centre County. Meeting contents unknown; minutes have been requested again, in a follow-up Right to Know request.

November 29 – December 1, 2017

On November 29, Jacobs emailed Andreus, copying Mrs. Gray and Ms. Myers. (Email 9)

Jacobs wrote to Andreus that he (Jacobs) had reviewed the zoning ordinances in Benner and Spring Townships and made the following comments:

“…Benner Township has Campus Industrial and Light Industrial zoning districts in the Benner Commerce Park. Both districts provide for “Manufacturing, packaging, storage and/or wholesaling” as a permitted use by right.

Although bottling water isn’t a specific use identified in either district, I would argue that it fits this permitted use category.

The definition of “Manufacturing” in the Benner ordinance clearly provides for your proposed activity: Manufacturing – Production of goods from raw materials, by the assembly of constituent parts produced elsewhere, or by a combination of these means, including the final packaging such goods for sale or shipment. Includes all activities included in the NAICS (q.v.) list of “manufacturing” activities….

Likewise, Spring Township has Light Industrial and Heavy Industrial zoning districts. The site you are considering is located in the Light Industrial district. This district does not specifically provide for your proposed activity. However, it allows for “medical device manufacturing”, “Pharmaceutical production and packaging”, and “Warehousing and wholesale trade establishments.”

These permitted uses by right in my opinion are in the same category of activity that you are proposing.

The Heavy Industrial district does provide for “Any production, manufacturing, assembly, processing, cleaning, repair, storage, or distribution of goods, materials, foodstuffs, and other products not involving a retail activity except as an accessory use.” The definition of “Manufacturing” in the Spring ordinance clearly provides for your proposed activity:

Manufacturing use – The processing and/or converting of raw unfinished materials or finished materials or products, or any combination of them, into an article or substance of different character, or of use of a different purpose. Additionally, the term manufacturing shall include industries furnishing labor in manufacturing or in the refurbishing of manufactured articles. This use includes apparel and textile products, chemicals and allied products, electric and electronic equipment, fabricated metal products, food and kindred products, lumber and wood products, machinery, paper and allied products, petroleum and coal products, stone, clay and glass products, textile mill products, tobacco products, transportation equipment and miscellaneous industries including the manufacture of jewelry, silverware, musical instruments, toys and sporting goods, office and art supplies, costume jewelry, notions, etc.

The Light Industrial district in Spring Township may need to be amended but the intent of the district is to provide for your proposed activity – based on the information in their ordinance I would make the request for a permitted use by right.

Recommendation – You could make the argument in both Townships that your proposed activity is intended as a permitted use by right in all of the industrial zoning districts. Most likely they do not want to go through the ordinance amendment process (advertising, public hearings, etc.) for your proposed use because in my opinion it is not necessary.

I would use the info above to make your request as a permitted use by right. If you would like assistance with this, please let me know and we can discuss this with the municipalities.” (Emphasis added)

Andreus replied on December 1, noting he “appreciated” Jacobs’ “interpretation of the zoning ordinances relating to manufacturing facilities.”

December 20, 2017

On December 20, the Spring Township Water Authority held its monthly meeting. The minutes noted:

“SOLICITORS REPORT: John Miller, Solicitor – Mr. Miller reported he reviewed the Loan Documents and the Access Agreement with Nestle Water and has no comments, document is fine.

CORRESPONDENCE/INFORMATION: Nestle Water – Doug Weikel, Chairman, reported he has talked with Eric Andreus of Nestle Water and they are at 99.9% go, will perform draw down test next. He will be at the January meeting to introduce himself and explain status.”

January 4, 2017

Scheduled for 8:00 a.m. on January 4 at the CBICC 0ffices (131 S. Fraser St. in State College) — the day after the proposal would come to public attention through the Centre Daily Times – invitees and possible participants included CBICC executives; Centre County Government; Spring Township: Spring Township Water Authority; Benner Township; SBWJA; Bellefonte Wastewater Authority; West Penn Power; DEP; and State government representatives.

This meeting was referenced in “Email re: Jan. 4 meeting” provided by Centre County, but again, no other documents such as agendas, minutes and notes were provided, despite specific enumeration of those items in the original RTK request. Therefore, the contents of the meeting are currently unknown, but the supporting documents have been requested again, in a follow-up RTK request.

January 17, 2018

On January 17, the Spring Creek Watershed Commission met in Bellefonte. Following the regular meeting, there was limited public discussion of Nestle bottling plant proposal, in which commissioners reportedly stated the commission has no oversight role regarding water extraction project proposals. (The video of the meeting may be at C-Net, but the author couldn’t find it during a quick search on Feb. 22.)

Mid-January 2018

While the format is unknown (whether telephonic, electronic or in-person), CBICC President Vern Squier “counseled” Nestle Waters executives regarding the corporation’s highly-publicized bottled water donations to the Mountaintop community, which has been struggling with a decaying public pipeline system, water shortages due to conventional gas drilling water withdrawals (see Jan. 26, 2018 CDT report by Sarah Rafacz), and boil water notices for many years, reaching crisis proportions in early January.

According to Email 17 provided by Centre County, during the counseling session, Squier steered Nestle to PA Rep. Mike Hanna’s office, Centre County Commissioner Michael Pipe, other commissioners, and Centre County Administrator Margaret Gray.

January 22, 2018

Centre County Commissioner Mark Higgins met on January 22 with Centre County Democratic Committee Vice-Chair Betsy Whitman, and Jessica Buckland, Patton Township Supervisor, cited in a text message from Higgins to Commissioner Michael Pipe on January 18 and in “Email 48,” both provided by Centre County via RTK.

Again, no minutes or other content information about this meeting was provided, so a follow-up request has been made, seeking the information again.

January 24, 2018

The Spring Township Water Authority board met January 24, attended by Spring Township resident and Sierra Club-Moshannon Group leader Lynne Heritage and other concerned citizens.

Heritage later reported that Doug Weikel, chair of the Spring Township Water Authority, previously worked for Nestle in Stroudsburg, PA, likely as a consulting engineer.

Heritage reported Weikel did all the talking at the water authority meeting and stated there will be no public hearing or meeting to allow citizens to weigh in on the proposed deal with Nestle.

January 25, 2018

On January 25, Nittany Valley Environmental Coalition issued a public statement on the proposed Nestle project, reprinted in full:

“The availability and public access to clean drinking water is a global issue, particularly in an era of climate change and increased corporate control of water resources.

The waters of Centre County are exceptionally clean and abundant; they support our families and businesses, not to mention our agriculture, fishing and hunting tourism, and watershed flora and fauna.

With care, Spring Creek should provide water for many decades of continued local population growth.

However, when millions of people opt out of drinking tap water there is less political and public support for taking care of public water supplies.

The water used by the Spring Township Water Authority comes from surface and subsurface flows around Logan Branch. Nestle Waters’ extraction of an additional 158 million gallons each year will reduce flows into Spring Creek by an equal amount, taking the water outside our community.

Other communities that have let Nestle extract local water have lost control of their water supplies, especially when confronted with drought. The callous corporate practices of Nestle in their interactions with these communities are well documented and required expensive litigation.

While we are sympathetic to the promise of jobs from Nestle, the relative benefit of job creation may not be worth the long-term cost, especially if our groundwater becomes the target for even more bottling companies, or Nestle asks for an increased water allotment.

The water under Spring Township does not belong to Spring Township alone. Nittany Valley Environmental Coalition opposes the extraction of water from Spring Creek or groundwater in the Centre Region for bottling by Nestle Waters and other water bottling companies.”

Late January 2018

On a date unknown in late January, Centre County Commissioner Mark Higgins met with Centre County Planning Director Robert Jacobs, as documented in “Email 48” provided by Centre County.

Again, the county has not provided minutes or other content information about the meeting; again, those records have been requested in a follow-up RTK request.

February 13, 2018

Email 4 from the first Centre County RTK response included an invitation to local officials to attend a tour of Nestle’s Lehigh Valley bottling plant on February 13.

Tour participation is unknown; Centre County did not provide information about local responses to the invitation, planning for the trip or attendance records. Those have been requested in a follow-up RTK request.

Also on Feb. 13, Bailiwick News posted the following to Facebook:

“Let’s suppose you’re a concerned citizen who wants to volunteer a few hours to help your community protect groundwater and surface water – in Spring Creek and downstream to the Chesapeake Bay – from extractive water withdrawals by the Nestle corporation.

Suppose you start looking for the right entity or entities to petition with your concerns, to understand the proposal review and risk assessment process, and to identify the people who will make the key decisions to protect or fail to protect a critical natural resource.

Here’s who you might find are on the list.

  • Spring Township Water Authority
  • Spring-Benner-Walker Joint (Sewer) Authority
  • Spring Township Board of Supervisors and Township Manager
  • Benner Township Board of Supervisors and Township Manager
  • Spring Township Zoning Board
  • Benner Township Zoning Board
  • State College Borough Water Authority
  • University Area Joint (Sewer) Authority
  • Chamber of Business and Industry of Centre County
  • Centre County Economic Development Partnership
  • Centre County Industrial Development Corporation
  • Centre County Commissioners
  • Centre County Planning & Community Development Office
  • Centre County Planning Commission
  • Centre County Conservation District
  • Centre Region Council of Governments
  • Centre Region Planning Commission
  • Centre Region Planning Agency
  • Spring Creek Watershed Commission
  • Spring Creek Watershed Association
  • Spring Creek Chapter – Trout Unlimited
  • ClearWater Conservancy
  • Sierra Club – Moshannon Group
  • National Wildlife Federation Climate Change Campaign – Pennsylvania Chapter
  • PA State Rep. Kerry Benninghoff
  • PA State Rep. Mike Hanna
  • PA State Sen. Jake Corman
  • PA Department of Environmental Protection
  • PA Department of Community and Economic Development
  • PA Department of Conservation and Natural Resources
  • Susquehanna River Basin Commission
  • Chesapeake Bay Program
  • US Rep. Glenn Thompson
  • US Environmental Protection Agency

Where would you focus your volunteer time?

Where would you try to make your voice heard?”

February 20, 2018

On February 20, ClearWater Conservancy issued a public statement, signed by Deb Nardone, Executive Director, and Andy Warner, Board President, calling for “time, science and transparency” in decisions about the future of Centre County groundwater and for an “integrated water resource management plan” for the region, reprinted in full:

“At a time when our community continues to prosper and grow, there’s an intensifying need to value, plan for and manage our water. A clean, reliable water supply is the life-blood of our community, providing for our families in our homes, sustaining our environment and outdoor recreation, and supporting a vibrant regional economy.

These discussions require time, science, and transparency…

When our community leaders consider new proposals such as the Nestle project recently proposed to be located in Spring/Benner Townships, the highest possible standard must be set to protect the integrity of our water supply, now and in the future. Thoroughly weighing benefits and risks of increasing demands on our water supply takes time, good science, and transparency in the decision-making process.

ClearWater Conservancy is driven by our core values – to focus on the future, act with integrity, and apply sound science to the responsible management of our natural resources. Based on our values, we believe the concept of an industry dependent on continuous extraction and export of our region’s groundwater raises questions and concerns that have not yet been adequately addressed.

A water budget is a good first step…

While our region’s groundwater system recharges over time, there are many factors that impact the rate of recharge and the amount of water available. Drought, commercial and industrial demands, population growth, and climate change all impact the reliability of our water supply.

ClearWater supports proactive, responsible management of our water supply, and believes our growing region would benefit from an Integrated Water Resources Management Plan. Such a plan would include a water budget that would clearly quantify the amount of available water and assess current and potential future water uses, without compromising our community or economy. This type of tool must be developed before sound, science-based decisions can be made regarding potential mass mining of water.

More opportunities for community feedback…

Additionally, ClearWater Conservancy understands that proactive source water protection and land conservation efforts are valued by our community. Our community should have input into future demands on our water supply, which observes no municipal boundaries. We would ask Spring Township and the Township Water Authority to convene town hall meetings to seek input from its residents – and all those who rely on adequate ground water for drinking water in this region – to discuss the proposal and solicit community feedback.

Lastly, Nestle and all decision makers involved have a responsibility to provide our community with both short and long-term plans for water extraction. For Nestle, this means being transparent through public forums about current and future intent regarding water withdrawals. Likewise, separate water rules and rates for commercial consumptive use should be determined, because water that is permanently exported from the region is not recycled back into our local water supply.

We expect community leaders will address the questions and needs we’ve identified above, beginning with the facilitation of constructive community conversations about our water and its use before any key decisions are made about consumptive water withdrawals for Nestle.

Please share your thoughts with us.

Please share your feedback regarding the proposed water bottling facility via email to ClearWater Conservancy’s executive director, Deb Nardone: deb@clearwaterconservancy.org. We will share your thoughts with partnering organizations and decision-makers, unless requested not to.

As always, we will keep you up to date on ClearWater’s efforts to proactively protect our region’s local natural resources for all future generations through land conservation, water resources stewardship, and environmental outreach across Central Pennsylvania.”

February 21, 2018

On February 21, Nestle announced the release of an economic impact study completed by a corporate consultant. The full document is available at stopnestlewaterextraction.wordpress.com, under “Nestle Public Relations.”

CRITICAL ANALYSIS

First off, Bob Jacobs’ “opinions” and “interpretations” about why Nestle shouldn’t bother with pesky public hearings or amendments to zoning ordinances, but should proceed as if they are entitled to extract millions of gallons of water per year for bottling and export “by right,” are bullshit.

Extraction and manufacturing are not the same things.

Jacobs’ interpretations are arguably intended only to spare Nestle and its boosters the headaches of public review and public condemnation of the plan’s intrinsic myopia.

That aside, the problem is not the likely economic impact. We unquestionably need good jobs: the dozens potentially available through Nestle’s local investment and hundreds more.

The problem is the environmental costs that come with economic benefits when the business model is extractive and brittle rather than productive and resilient.

Nestle’s proposal to invest $50 million could be excellent for our local economy if our County Commissioners made a counterproposal designed to simultaneously protect our relatively fragile groundwater system and high-quality cold water fisheries (and related tourism), and to increase profit margins and access to markets for Centre County dairy, vegetable and fruit farmers, to advance the goal of strengthening our agriculture economy.

Specifically, the commissioners could propose that instead of extractive water bottling, Nestle invest $50 million in a Centre County food processing facility creating food processing jobs, to produce frozen fruits and vegetables and dried milk products from local, sustainably produced crops and milk, for distribution and sale to consumers in the mid-Atlantic regional market.

This vision is in better alignment with our community’s values, which include both good jobs and sound natural resource stewardship.

It also aligns with comments Ferguson Township Supervisor Laura Dininni made after a Bellefonte-Milesburg greenway community forum held on Feb. 22.

Dininni described a vision of “economic development based on conserving our important ecological areas and acknowledging that people really value nature and that can be not only the ecological foundation for investment in the community but also nature can drive the social and economic aspects and investment in the community.”

Amen, sister.

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Bailiwick News – February 10, 2018

2.10.18 Bailiwick News

READER EDITORIAL: An unflinching look at Penn State’s ugly environmental leadership failures.

By Andrew McKinnon

Penn State, a land grant university ostensibly dedicated to studying agricultural lands rather than destroying them, sold Toll Brothers 45 acres of farmland in December 2017 at the intersection of Whitehall Road and Blue Course Drive, for yet another luxury student housing complex.

Not only will the development destroy a huge expanse of farmland and one of the most beautiful views in the region, it may also threaten the drinking water supply for State College. There is overwhelming public opposition to developing this land. Unfortunately, Penn State has chosen to thumb its nose at the community; Toll Brothers will likely break ground on the project this spring.

Prioritize Environmental Health

Protecting the natural environment of our region is becoming increasingly urgent, especially given the anticipated challenges of climate change. Penn State uses its power and influence to rob us and future generations of our rights to a clean and healthy environment. Climate change presents an invitation to change the relationship we have with our home, the Earth, from one of disregard, exploitation, and plunder to one of respect, preservation, and living lightly upon it, as these are the very qualities we will need to survive the accelerating effects of climate change in the coming decades.

Penn State is not the only large corporate player in the Centre Region threatening environmental health. Just recently the community began gearing up for an imminent battle to keep Nestle Corporation from exploiting our water for tremendous profit at minimal cost.

Sound familiar?

Penn State: Full (Self) Service Provider

The unfolding tragedy of the Toll Brothers development shows that Penn State is out of step with the needs, desires, and rights of the community. The university has become a rogue actor in the Centre Region, seizing its position of dominance largely through its status as a “state related” school, which affords it the opportunity to play both sides of the public-private fence.

For instance, in the case of the Toll Brothers development, Penn State bought 26 of the acres for $99,000 and has now sold the entire 45-acre parcel for a whopping $13.5 million.

Because it claims to be a public institution exempt from PA’s Right to Know law, Penn State is not required to disclose the details of the transaction and it pays no taxes on this huge capital gain.

However, as a public institution, that is, an “instrumentality of the state,” the university would have to comply with PA’s Environmental Rights Amendment (ERA), meaning it must act as a trustee of the land.

If confronted with this reality, Penn State might claim it is actually a private nonprofit corporation and therefore not bound by the ERA.

However, as a private entity it would then have to open its records about this and other real estate transactions and would owe millions of dollars in unpaid taxes. Among other benefits, the revenue that would derive from real estate taxes could help pay to mitigate environmental damage caused by development, such as an upgraded water treatment plant if the Toll Brothers project contaminates the State College water supply.

Addressing Climate Change

Penn State is in a position of great power to address climate change. In fact, the university has a reputation as a leading climate research institution and is the home of renowned leaders in climate research including Richard Alley and Michael Mann. Yet, despite what “public Penn State” is doing to address climate change, here are some ways that “private Penn State” is acting like quite an irresponsible neighbor and global citizen:

Increasing Enrollment, Privatizing Student Housing

Between 1980 and 2013, Penn State increased enrollment 37 percent while increasing on campus housing only 3 percent (Voices of Central PA, July 2015, “PSU Planning Another Boundary Violation”). This is why there seems to be a new “luxury student housing” complex being built on every other street corner surrounding the University Park campus.

Penn State has purposely externalized its responsibility to house and feed thousands of its students. The Centre Region can’t sustainably support this relentlessly expanding human footprint without degrading farmland, risking water supplies, and raising rents for the rest of the community.

In addition, unsustainable growth and development steadily increases the amount of carbon and other greenhouse gases (GHGs) in the atmosphere. 

No Fossil Fuel Divestment

Penn State has made no gesture whatsoever toward eliminating its fossil fuel investments. Meanwhile, over 125 colleges and universities worldwide and about 40 in the United States have agreed to part with at least some of their fossil fuel holdings. Penn State likes to proclaim itself a leader in lots of categories, but it is falling far behind in one of the most important categories of all – leaving as much carbon in the ground as possible.

All academic institutions have the implicit mission of contributing to a brighter future by providing students with a high quality education. It is unconscionable to simultaneously destroy that future by funding those companies that are most responsible for taking carbon out of the ground and putting it into the atmosphere.

No Fossil Fuel Phase-out Plan

Penn State has no plan to replace its two natural gas power plants with renewable energy. At best, natural gas is a bridge fuel from more carbon intensive fuels like petroleum and coal to clean energy such as solar and wind. At worst, it may be just as dirty as other fossil fuels, largely because of the significant amount of methane, a potent greenhouse gas that is released in its production.

Conclusion

We cannot afford to allow Penn State and other large and powerful corporations to compromise our future here in Centre County. Residents have the right to a clean and healthy natural environment and must protect it from large corporate predators.

Herein lies the hope that our children and theirs will enjoy nature still – large open fields and forests, clean air and water, rich soils and beautiful views.

Taking stock.

I’m working on a list of the achievements of the Battle for Slab Cabin Run that began in February 2015, and may or may not have a few more innings to run, depending on current research by several activists.

For starters, the campaign saw 40-50 committed activists, supported by thousands of other community members, raise $40,000 to file a lawsuit and, using the time created by the lawsuit, occupy the Whitehall Road site and develop a viable alternative proposal, that (in combination) delayed Penn State’s $13.5 million land sale to Toll Brothers from December 2015 to December 2017, and delayed the bulldozers from earth moving, tree removal, dynamite blasting and paving in the watershed that would otherwise have started in Spring 2016.

Readers with items to add, please email them to me at kw.investigations.llc@gmail.com

So far, the community campaign to protect public water supplies and farmland has:

  • Built broad and deep community awareness and concern about regional watershed and farmland conservation and our uniquely fragile local hydrogeology
  • Exposed some of the mechanical workings of Penn State’s corporatization, secrecy, lying, corruption, community abuse and contempt to thousands of onloookers.
  • Helped township voters elect conservation-minded local legislators
  • Given a push to some regional water and land use management planning initiatives that are now underway, including the Centre Region Park and Recreation Regional Comprehensive Plan; a proposed comprehensive watershed management plan; and proposed mutual aid initiatives between water authorities in Centre County
  • Helped mobilize community support for the ClearWater Conservancy Slab Cabin Run Initiative, which successfully raised $2.75 million to protect 300 adjacent acres in the same watershed
  • Created space for the re-opening of the Whitehall Road Regional Park master planning and financing process, potentially allowing for a lower-intensity passive-use park combined with installation of rectangular fields for soccer and lacrosse club use at other, more ecologically-suitable regional park locations
  • Prompted State College Borough Water Authority and University Area Joint Authority to establish mutual liaisons to each others’ boards, to promote timely communication between water-related public entities
  • Prompted C-NET to begin video coverage of SCBWA meetings
  • Connected a lot of concerned citizens who didn’t know each other before, and now have strong working relationships with each other.

Letter to PA Supreme Court Disciplinary Board Chief Counsel

1.9.18 Letter to Killion re Stacy Parks Miller

Dear Mr. Killion:

I write regarding the Disciplinary Board proceedings against former Centre County District Attorney Stacy Parks Miller.

Although the board has collected evidence of wrongdoing by Parks Miller (2.22.17 Disciplinary Board Petition for Discipline) and has scheduled several public hearings to review the allegations in the petition and consider sanctions, these hearings have been repeatedly postponed. It is my understanding that there may be a private settlement under negotiation.

I would like to urge you and the disciplinary board not to engage in a private settlement of Parks Miller’s case, but to proceed with a public hearing and public imposition of sanctions.

I have published extensively about the controversies surrounding her tenure (see attached). Parks Miller committed her ethical and legal infractions while acting as a public official. As a result, unlike a private attorney, the damage she has inflicted on victims is private and public.

In sum, through her actions, she has compromised the integrity of the entire Centre County judicial system, and parts of the state judiciary as well, through her manipulation of the Krumenacker grand jury in Western Pennsylvania.

Recovery from the Parks Miller damage in Centre County will take years, if the damage can be repaired at all. Many Centre County residents believe with good reason that our judges are corrupt, that cases are fixed, and that our chief law enforcement officer is above the law, not held accountable for crimes as ordinary citizens are.

With good reason, we do not believe our judicial system is fair and impartial, nor that it even has the appearance of being fair and impartial.

For our new district attorney and our current group of judges to rebuild public trust in the county judicial system, they – and the county citizens they serve – need the full and public support of the disciplinary board, through an open, public disciplinary proceeding against Parks Miller.

Sincerely,

Katherine Watt

PILOT Agreements – Initial Review

Quick summary of the “payment in lieu of tax” agreements – history and current status:

In the late 1980s, Centre County attempted to collect property taxes from Penn State. Penn State filed suit in Centre County Court, claiming to be tax exempt as an agency of the Commonwealth. The case made it to the Supreme Court in 1992, on the issue of whether that question had already been settled with finality through a 1939 Centre County decision.

The Pennsylvania Supreme Court ruled that because of “significant changes in the factual circumstances of the University’s relationship with the Commonwealth and in the property’s uses” over the previous 50 years, the issue was worth another look, and remanded the case back to the Centre County Court for further proceedings.

At that point, the parties entered into a settlement agreement, and withdrew the case from the courts. The “PILOT” agreement, for “payment in lieu of taxes” had Penn State agree to pay some taxes on property leased to third parties. The 1992 version was later amended in 2005 and 2008.

Under the agreement, Penn State only pays about $642,000 to the Borough of State College, directed to the capital fund, each year.

According to State College Borough website, Centre County assessed Penn State’s property within Borough boundaries at about $262.9 million in 2015. According to a page at the Borough’s website, if that property were fully taxable at the millage rates applied to other Borough property owners, Penn State’s resulting 2015 real estate tax payment to the Borough would have been about $3.8 million.

Therefore, corporate Penn State enjoys a tax savings of $3.2 million per year within just the Borough, with the lost revenue compensated for by higher taxes on other State College property owners and lower levels of State College public services than we would otherwise be able to afford. All other local taxing authorities, including the townships, the State College Area School District, and Centre County, forego revenue on the Penn State-owned property within their respective jurisdictions as well.

Meanwhile, from 1994-1997, Dauphin County attempted to collect property taxes from Penn State’s Milton S. Hershey Medical Center. Penn State filed a suit in Dauphin County Court. That case also went up to the Supreme Court in 1999, which ruled that Penn State no longer qualified as “an instrumentality of the state” because the legislature no longer controlled governance of the institution through a majority of the Board of Trustees and state and federal support were no longer a majority of funding (outweighed by private tuition payments).

The Pennsylvania Supreme Court then remanded that case back to the Dauphin County Court to decide whether Penn State qualified for local real estate tax immunity as a “purely public charity.” The Dauphin County Court in 2000 ruled that neither Penn State University nor the Milton S. Hershey Medical Center qualify as purely public charities, because neither operate “entirely free from private profit motive.”

Penn State appealed that county court ruling to Commonwealth Court, but while the case was pending, again entered a PILOT agreement with local Dauphin County taxing authorities and withdrew the case from court, again agreeing only to pay a small fraction of the tax liability that would otherwise apply to the University’s extremely valuable property.

For reference, in the University’s 2015 IRS 990 filing, Penn State still describes itself as “an instrumentality of the Commonwealth of Pennsylvania,” and as “a federal. State or local government or governmental unit described in section 170(b)(1)(A)(v)” of the IRS code. On Schedule D of the 2015 IRS filing, the University listed “land, buildings and equipment” with a book value of $4.6 billion.

The 2005 PILOT agreement between Penn State, Centre County, State College Borough, Patton Township, Harris Township and Ferguson Township listed a 20-year term, and is the document now in effect, set to expire on December 31, 2024.

It contains a number of extremely troubling provisions hampering local governmental bodies in the fulfillment of their obligations to the taxpaying citizenry.

For example, Penn State anticipated that “third parties” such as other land development corporations or other Centre County property owners or taxpayers, might challenge the PILOT agreement on equal protection or other grounds.

The agreement at Section 7 stipulates:

“The County and Municipalities agree that during the term of the Settlement Agreement they shall not initiate or participate in any legal action seeking to challenge the tax exempt or tax immune status of the University.”

Further, at Section 10(c), the parties agreed

“to contest any Court proceedings filed by a third party seeking to declare invalid any of the material provisions of the Settlement Agreement” and “not support or encourage any Court proceeding by a third party seeking to declare invalid any of the material provisions of this Agreement.”

The 2008 amendments – adopted in response to a Court challenge filed by Centre County in 2007 and several assessment appeals – took the restraints further, committing the parties to an annual meeting to be held each September or October to identify parcels subject to taxation, challenges to be raised through “non-binding private mediation” within 60 days after the meeting, with the mediation panel “not bound by formal rules of evidence.”

After the mediation panel’s recommendation, all parties have 30 days to accept it, or file a Declaratory Judgment action in Centre County court regarding the classification of the disputed parcels.

Research ongoing.

Reforming Penn State – Update

On December 22, Penn State and Toll Brothers closed the land sale for the Whitehall Road parcels that were the subject of the Nittany Valley Water Coalition lawsuit filed in December 2015.

The water coalition members anticipated the closing after we were evicted from the occupation of the site in early October.

Nonetheless, we continued to advocate for the land swap, and attempted to incentivize Penn State’s participation in the land swap by notifying the university of our intent to incorporate as a 501(c)4 called Nittany Valley Environmental Coalition, and to subsequently file a constitutional challenge in January if the University failed to pursue the land swap alternative in good faith.

We don’t plan to challenge the specific Whitehall Road transaction; we cannot raise a $13.5 million security bond.

Rather, we intend to challenge Penn State’s procedures for land acquisition, sale and development, under the fiduciary trustee standards imposed on public, government entities by the PA Constitution Environmental Rights Amendment in 1971, and strengthened by the Supreme Court’s ruling in PEDF v. Commonwealth in June 2017.

Our claim will be either

1) that Penn State is a public entity for the purposes of real estate transactions, and must therefore develop and promulgate transparent public procedures for its disposition of its Commonwealth landholdings, enabling citizens to intervene early enough in the process to protect critical natural resources similar to the Whitehall Road parcels in the future, or,

2) that Penn State is a private entity and must therefore forfeit its significant property tax exemptions and pay taxes on its enormously valuable county landholdings at a similar rate to other private property owners in Centre County, to relieve other taxpayers of the significant financial burden of subsidizing Penn State’s rampant enrollment growth and related housing and commercial development, including police, fire and emergency medical services; public services such as road and park maintenance; operation and expansion of water, sewer and stormwater management systems;  refuse and recycling collection; environmental protection and damage mitigation; and the many other costs of maintaining a community that rise with population increases and inflationary pressures.

Following is a link to the Dec. 19, 2017 NVEC press release laying out some preliminary legal research on our proposed lawsuit.

Since this was released, we have acquired more information, including PILOT (“payment in lieu of taxes”) agreements in effect between Penn State and Dauphin County, and between Penn State, Centre County and four participating local municipalities. Our research is ongoing.

We have been meeting with local attorneys during this preliminary stage and will continue with those meetings.