THE BARNSTEAD WATER RIGHTS AND
LOCAL SELF-GOVERNMENT ORDINANCE
Section 1. Name. The name of this Ordinance shall be the “Barnstead Water Rights and Local Self-Government Ordinance.”
Section 2. Preamble and Purpose. We the People of the Town of Barnstead
declare that water is essential for life, liberty, and the pursuit of
happiness – both for people and for the ecological systems which give
life to all species. We the People of the Town of Barnstead declare
that we have the duty to safeguard the water both on and beneath the
Earth’s surface, and in the process, safeguard the rights of people
within the community of Barnstead, and the rights of the ecosystems of
which Barnstead is a part. We the people of Barnstead declare that all
of our water is held in the public trust as a common resource to be
used for the benefit of Barnstead residents and of the natural
ecosystems of which they are a part. We believe that the
corporatization of water supplies in this community – placing the
control of water in the hands of a corporate few, rather than the
community – would usurp democratic processes and result in
tyranny; and that we the people are therefore duty bound, under the New
Hampshire Constitution, to oppose such usurpation and tyranny.
That same duty requires us to recognize that two centuries’ worth of
governmental conferral of constitutional powers upon corporations has
deprived people of the authority to govern their own communities, and
requires us to take affirmative steps to remedy that usurpation of
governing power.
Section 3. Authority. This Ordinance is adopted and enacted
pursuant to the authority granted to the people of the Town by all
relevant state and federal laws including, but not limited to the
following:
§ Part First, Article 10 of the
New Hampshire Constitution, which declares that government is
instituted for the common benefit, protection and security of the whole
community, and not for the private interest of any class of men;
§ Part First, Article 1 of the New Hampshire Constitution, which
declares that government is founded upon the consent of the people and
instituted for the common good;
§ The spirit of Part Second, Article 5 and Part Second, Article 83
of the New Hampshire Constitution, which subordinate corporations to
the body politic;
§ NH RSA 31:39 I (a), (l) which, under powers and duties of Towns,
permits bylaws for the care, protection, preservation of the commons;
the ordering of their prudential affairs; and the enforcement of
such bylaws by suitable penalties.
§ The Declaration of Independence, which declares that governments
are instituted to secure people’s rights, and that government derives
its just powers from the consent of the governed;
§ The General Comment of the United Nations Covenant on Economic,
Social, and Cultural Rights, which declares that “the human right to
drinking water is fundamental to life and health. Sufficient and safe
drinking water is a precondition to the realization of human rights.”
Section 4. Statement of Law. No corporation or syndicate shall engage
in water withdrawals in the Town of Barnstead. The term “corporation”
means any corporation organized under the laws of any state of the
United States or any country. The term “syndicate” includes any limited
partnership, limited liability partnership, business trust, or limited
liability company organized under the laws of any state of the United
States or any country. The term “engage” shall include, but not be
limited to, the physical extraction of water, and the buying and/or
selling of water extracted within the Town of Barnstead.
Section 5. Statement of Law. No corporation doing business within the
Town of Barnstead shall be recognized as a "person" under the United
States or New Hampshire Constitutions, or laws of the United States or
New Hampshire, nor shall the corporation be afforded the protections of
the Contracts Clause or Commerce Clause of the United States
Constitution, or similar provisions found within the New Hampshire
Constitution, within the Town of Barnstead.
Section 6. Exceptions. The people of the Town of Barnstead hereby allow
the following exceptions to the Statement of Law contained within
§4 of this Ordinance:
(1) Municipal authorities established under the laws of the State of
New Hampshire engaged in water withdrawals providing water only to
residential and commercial users within the Town of Barnstead;
(2) Nonprofit educational and charitable corporations organized under
state non-profit corporation law, and qualifying under §501(c)(3)
of the federal Tax Code, which do not sell water withdrawn within the
Town of Barnstead outside of the Town of Barnstead;
(3) Utility corporations operating under valid and express contractual
provisions in agreements entered into between the Town of Barnstead and
those utility corporations, for the provision of service within the
Town of Barnstead;
(4) Corporations operating under valid and express contractual
provisions in agreements entered into between residents of the Town of
Barnstead and those corporations, when the withdrawn water is used
solely for on-site residential, household, agricultural, or commercial
facilities within the Town of Barnstead, as long as such commercial
facilities do not withdraw water for sale outside of the Town of
Barnstead, or purchase water withdrawn from the Town of Barnstead for
sale outside of the Town.
Section 7. Enforcement. Any corporation planning to engage in water
withdrawals within the Town of Barnstead must notify the Town of such
activity at least sixty (60) days prior to engaging in water
withdrawals. Such notification shall contain a claim to one of the
exemptions listed in §6 of this Ordinance. Any violation of
this Ordinance shall be considered a criminal summary offense, and will
subject the Directors of the noncompliant corporation to joint and
several liability with the corporation itself. The Board of Selectmen
of the Town of Barnstead authorizes a fine of up to $1,000.00 per
violation. Each act of water withdrawal shall be considered a separate
violation of this Ordinance. The Board of Selectmen of the Town of
Barnstead may also file an action in equity in the Belnap County
Superior Court or any other Court of competent jurisdiction to abate
any violation defined in Section 4 of this Ordinance. If the Selectmen
of the Town of Barnstead fail to bring an action to enforce this
Ordinance, any resident of the Town has standing in front of the Court
for enforcement.
Section 8. Severability. The provisions of this Ordinance are
severable, and if any section, clause, sentence, part, or provision
thereof shall be held illegal, invalid or unconstitutional by any court
of competent jurisdiction, such decision of the court shall not affect,
impair, or invalidate any of the remaining sections, clauses,
sentences, parts or provisions of this Ordinance. It is hereby
declared to be the intent of the people of Barnstead that this
Ordinance would have been adopted if such illegal, invalid, or
unconstitutional section, clause, sentence, part, or provision had not
been included herein.
Section 9. Effect. This Ordinance shall be effective immediately upon its enactment.
Passed by the Citizens of Barnstead in Town Meeting March 18, 2006
