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Well: status and legal issues

When you drink the water, remember the spring, Chinese Proverb

Status and Legal Issues

September 2010

newClick here for additional information on Well #7 9/10

July 2010

The Court of Appeals has ruled that the Wisconsin Department of Natural Resources misused its discretion in granting an approval to the Village of East Troy to construct Village Well # 7 in 2005. Specifically, The Court found that the DNR had failed to consider information given to it by the Lake Beulah Management District, including preliminary test results clearly demonstrating that operation of the well could adversely impact Lake Beulah. Absent a petition to the Wisconsin Supreme Court to review this decision, the case now moves back to the DNR with directions that it consider the scientific analyses presented to it before deciding whether the Village may operate the well.

On a larger scale, this decision represents a significant breakthrough in Wisconsin law regarding the protection of lakes and streams. For the first time, there is a judicial decision recognizing that the DNR’s statutory duty to enforce the public trust doctrine---the constitutionally based body of law that protects navigable waters for the public benefit---as it applies to the groundwater which becomes surface water. The link between groundwater and surface water may seem obvious, but it has taken over 160 years for our state law to affirm the connection.

And now we may need to continue to fight, against one or more governmental bodies no less, in order to ensure that this critical decision safeguarding the public’s waterways remains intact.

August 2007

Groups Challenge DNR on Wells. Agency Must Assess Effects on Nearby Waterways, They Claim, by Darryl Enriquez, JS Online, posted: Aug. 16, 2007

Claim: NOTICE OF CLAIM AND CLAIM PURSUANT TO WIS. STAT. § 893.80 AND WIS. STAT. § 893.82 (Click here for a PDF copy)

Press Release: NOTICE OF CLAIM FILED AGAINST STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES AND VILLAGE OF EAST TROY (Click here for a PDF copy)

Wisconsin's Silent Springs: Demand is Reducing Water Levels, by Ron Seely, Wisconsin State Journal, posted: August 17, 2007.

June 2007

(6/2/07) EAST TROY VILLAGE BOARD RESOLUTION 2006-07
Resolution authorizing preparation for construction of well no.. 7, establishing pumping restrictions and monitoring requirements, declaring village obligations

(6/2/07) Petition for review filed in Circuit Court regarding the DNR's modification approval to move well # 7's location 12 feet. Click here for a PDF copy of the petition


(1/11/07) LBMD Ordinance No. 2006-03: An Ordinance Prohibiting the Net Transfer fo Groundwater and Surface Water from Lake District Hydrologic Basin pdf file

Dec. 17, 2006 Lake Beulah dispute echoes larger battle. In tussle with East Troy over well, district takes cue from Great Lakes controversy. by Darryl Enriqez, JournalSentinel.com

November 7, 2006 Supreme Court decision denying certification

October 2006

On August 21st, 2006, the Village of East Troy Board awarded a contract to proceed with the development of Well # 7. “The award was delayed several months to allow for continuation of ongoing discussions with residents on Lake Beulah over an alternative well site,” according to a recent Village Board press release. The press release said the Board decided to move forward with well # 7 after a test well on the Village's west side presented water quantity and quality concerns compared to the well # 7 site and the alternative site could be more costly and take longer to place on line. At this point I'd like to make a couple of comments. First on behalf of our Association I want to express my sincere thanks to the three lake residents who dedicated their valuable time, expertise and monetary resources this past plus year in doing their utmost to find an alternative well site. Despite what the Village claimed in its decisions & releases, I have been informed that the alternate site was in fact a very viable alternate well site to well # 7 that would have served the Village water needs very effectively. So what are we going to do now you might ask?

First you should know that on July 28th 2006, the Lake Beulah Management District (LBMD) and the Lake Beulah Protective & Improvement Association (LBPIA) as co- petitioner have filed a “Petition for Review” with the State of Wisconsin Supreme Court on the Opinion and Order of the Court of Appeals, District II dated June 28th, 2006 and the Final Judgment entered July 15, 2005 by the Honorable James L. Carlson, Walworth County Circuit Court Judge, Case Nos. 04-CV-683 and 04- CV-687. In short our petition argues that the Supreme Court should review the Court of Appeals' erroneous factual determination that the 2003 permit for well # 7 expired on September 5, 2005, and that DNR issued a new permit on September 6, 2005 which was clearly effective as of September 4, 2005, because it was granted for two years from that date. Simply put, an explicit two year extension of a permit with no gap in its effective period cannot be later construed as a new permit when a new permit was never sought nor granted. Our attorney advises that we can expect a decision from the Supreme Court whether or not it will accept our case sometime in September or October 2006.

Second, senior hydrogeologist Bob Nauta from RSV Engineering has said the data from his watershed study of Lake Beulah, combined with the University developed ground water model shows a 25 % loss of groundwater discharge into the lake at its southerly end if the well is pumped at the projected 333 gallons per minute rate. The model simulates the water table at various depths during pumping and projects the water table will change eventually reversing the course of the groundwater system and pulling the groundwater flow toward new Village well #7. Nauta called this loss significant (not to mention the fact that this daily loss of nearly a half million gallons of valuable groundwater will end up in the Honey Creek watershed never to be seen again in the Beulah watershed). Nauta therefore recommends we continue and expand on our lake monitoring efforts including historical data, an analytical description of the water balance and water quality data, installation of a lake logger on the lakebed to measure temperature and additional monitoring of upstream lake inflows and outflows at the dam. He stresses the importance of and additional monitoring of upstream lake inflows and outflows at the dam. He stresses the importance of gathering as much information as possible before the new well goes online. Bob Nauta joined us at our annual fall members meeting on Saturday September 30th, 2006. He did his power point presentation on the watershed study and groundwater flow model and briefed us on what we can expect and do as the Village proceeds with construction of well # 7 on the shores of Lake Beulah.


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August 2006

July 28, 2006: PDF copy of the LBMD/LBPIA Petition for Review filed with the Wisconsin Supreme Court on July 28th, 2006. Attoreney David Meany told the Lake District at its annual meeting on August 22nd that he expects the Court should rule on whether it will actually accept the case by sometime in September or October.

Motion for Reconsideration PDF copy

July 2006

July 28, 2006: Click here for a PDF copy of the LBMD/LBPIA Petition for Review filed with the Wisconsin Supreme Court on July 28th, 2006. Attoreney David Meany told the Lake District at its annual meeting on August 22nd that he expects the Court should rule on whether it will actually accept the case by sometime in September or October.

May 2006

East Troy Times of May 24th, 2006: The village of East Troy has published its "Official Notice to Bidders, Well # 7"
It states: "the project consists of the construction, testing, and sampling of a sand and gravel well with an approximate depth of 312 feet." The notice goes on to say under time and place of bid opening that bids will be received until 10:00 AM on June 1st, 2006 by the Village Clerk.

Trustees Approve Land Purchase for Village Well, by Katie Matteson, East Troy Times, Posted: May 3, 2006 http://www.easttroytimes.com/PDFs/5248.pdf

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April 2006

Village Adopts Resolution to Proceed With Well Development, by Katie Matteson, East Troy Times, Posted: April 26, 2006 http://www.easttroytimes.com/PDFs/5244.pdf

April 27, 2006, From the President's Desk:

Dear East Troy Times Editor,

Below is a message in response to the action taken April 24, 2006 by the Village of East Troy Board on proposed Village well # 7.

Subject: The Wrong Resolution
The Resolution passed by the Village Board on April 24, 2006 regarding the controversial Village Well #7 site was unfortunately a big step in the wrong direction. I along with many others had hopes we might obviate the need for using the original Well #7 site by identifying an alternative well sited outside the Lake Beulah watershed. The resolution does however indicate that "those efforts are continuing and the Village will continue to work with these groups to explore altenative sites .......".__The inclusion in the resolution to operate the pump at one third its capacity is not a major concession because accepted engineering practice is that pumps should not be operated at full capacity 100% of the time and usually are operated at their full capacity for about 8 hours each day and then allowed to rest for the other 16 hours, although in emergencies the pumping time can be increased to offset the water needs.__The monitoring proposal is fine as far as it goes but water level drop in the lake is only one concern that may or may not be a major_ factor. The larger concern is the gradual and irreversible longer term impacts likely to result from the massive groundwater diversion from the lake via well #7 that include, but are not necessarily limited to, lake temperature change, compositional change, and the impacts to aquatic plants and animals, DNR designated sensitive areas (one of which is directly below the well # 7 site) and just the overall regime change that can occur under such conditions. There's no mention either on how the Village plans to involve the affected Lake Community in their monitoring proposal once the _well becomes operational.
Even under it's reduced pumping proposal, the Village will remove close to a half million gallons per day (the 1/3 pumping rate the Village proposed in its resolution) from the Lake Beulah and Mukwonago River watersheds and distribute those waters out through the Village water supply system and then on out through its sewerage system ultimately discharging the treated waste water to Honey Creek, a tributary to the Fox/Illinois river. That's a total of some 15 million gallons per month or about 180 million gallons per year at 1/3 the Village's pumping rate that will never again be seen in the Lake Beulah/Mukwonago River watershed year in year out with a potential increase to two times that in the next two years if the monitoring program shows “no adverse impacts”. It should be interesting to see what the Village defines as "no adverse impacts"!! Groundwater and surface water level monitoring are only one component of the diverse set of impacts that could occur from this assault on the groundwater that feeds Lake Beulah.
In passing this resolution the Village is in essence proposing the construction of a “wasting” water system, as described by Prof. Cherkauer at the Town Hall Meeting last summer. This is not sustainable in the long term, and is an example of poor water management practice. The community of East Troy deserves better than this, and it is not too late to change the outcome. Your friends and neighbors at Lake Beulah are ready and willing to help develop a sustainable water management plan for our area. If you would like to help, please contact your Village Board members and tell them of your concerns (if you are a Village resident). Also, if you are interested in learning more about this important issue please visit our Website at www.lakebeulah.org . We seek only to protect the currently clear, clean and productive waters of Lake Beulah for all to enjoy including Lake residents, Village residents and all visitors and users alike for both this and future generations.
Paul Didier, P.E., President, Lake Beulah Protective & Improvement Association


The proposed Village of East Troy high capacity well #

7 continues to be the major issue for Lake Beulah and East Troy residents. On June 24th, 2005, Walworth County Circuit Court Judge James L. Carlson affirmed the earlier decision of Administrative Law Judge Boldt indicating in part that there was no evidence on the record that the proposed well would harm the lake, its related wetlands and ground waters and private wells in the area. The unfortunate part of this ruling is that we the petitioners, the Lake Beulah Management District (LBMD) and the Lake Beulah Protective & Improvement Association (LBPIA) were not given an adequate opportunity to submit scientific and engineering evidence on the impacts that can result from locating a high capacity well in close proximity to Lake Beulah. Note worthy in Judge Carlson's decision is the statement that we as petitioners have other remedies available “should there be proof of damage to the lake or private wells pursuant to Section 30.294, Wis. Stats.” Of course by then the resources may be irreversibly harmed and difficult if not impossible to correct.
That said, what are our options at this point given that the Village has stated their intent to proceed with construction of the well in August of this year?
1. Continue to negotiate in good faith with the Village on an agreement which will limit pumping volumes, include a comprehensive monitoring system of the lake and its sensitive wetlands using the USGS as a third party mediator and precluding any future high cap wells from being located within the Beulah/Mukwonago watershed.
2. Continue to evaluate and pursue alternatives with the Village, including but not necessarily limited to, alternate well sites that are outside the Beulah watershed, a well that utilizes recycling of its waters introduced back into the watershed from where they are withdrawn rather than a wasting system discharging to Honey Creek as under the current proposal and see if there is some way we could help offset the costs to the Village.
3. Pursue legal options for reconsideration by the Court providing adequate scientific evidence the court said was missing and/or appeal the latest decision to next court level.
4. Do nothing further and let the “WELL” take its own course. This in no way meets our LBPIA mission to protect and improve and will not be the chosen option as long as I am your President! I might add that none of the first three options is mutually exclusive: in fact it's possible to pursue all three simultaneously.

If you have strong views on any of these alternatives please let me know.

Paul Didier

(Paul would like to add that we have, in fact, appealed the Walworth County Court's decision to the State of Wisconsin's Court of Appeals)

For the complete message from the president which also addresses other issues of concern to Lake Beulah property owners see the LBPIA home page.

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August 2005

9/16 Report on the 8/10/05 Open House organized by the Village of East Troy to discuss well #7.
by Ann Marie French

Open House Format

The Open House consisted of the following groups with tables in this order of appearance:
==> Village: hosted by Dr. John Jansen
==> LBPIA: hosted by Bob Burmeister & Paul Didier
==> LBMD: hosted by Bob Nauta
==> Friends of Mukwonago River: Two people
==> WAL: hosted by Ezra Meyer

The Open House was informal with no overall presentation. The public was invited to visit the tables, ask questions, and view the material/individual presentations. It lasted from approximately 5 p.m. until 8 p.m. The public arrived sporadically, entering the building, visiting the village table first and then on to the LBPIA, LBMD, Friends & WAL tables.

It appeared that the Village attempted to make the biggest impression on the public by presenting their views to the people first. However, the set up worked against them, in that the public's last impression as they left the open house was from the four consecutive anti-well groups.

Presentations

The Village table consisted of a large display including one graphic of the proposed well site and a Power Point presentation of data, charts and additional information. However, due to technical difficulty, the PowerPoint did not work until later that evening. They lacked specific testing information.

Bob Burmeister and Paul Didier presented their display including data regarding the watershed, well depth and related facts regarding the well. They had the power-point presentation available on the lap-top.

Bob Nauta made available a 2003 letter from SEWRPC to Dave Skotarzak supporting our position that more testing is required to understand the impact of the well. Ann Marie French made available a handout with 5 main concerns about the well and contact information for Village Board members. Nauta displayed 3 poster-board depictions: the alleged clay barrier; view of the watershed showing other locations suitable for a well; and other supporting data. He also showed Rob Hudson's treatment of the Village flyer on the well corrected for accuracy

Ezra present background information on lakes as well as material presented at the Town Hall meeting by Prof. Cherkauer.

Friends of Mukwonago River had a video display and a display board.

Tone

Most of those attending appeared to be against the proposed well location. Bob Nauta would estimate that 4 out 5 people supported our position. Based on the opinion of several local attendees, roughly 2/3 of the crowd was town residents and 1/3 village residents.

Heated questions were thrown at the Village's expert, Dr. John Jansen, regarding the placement of the well & water depletion. His responses seemed unsatisfactory to those listening and he remained on the defense most of the night. Although he tried to respond with data and scientific information, the response from the crowd was that of distrust and skepticism.

Of note: Bob Mueller showed up in the middle of Dr. Jansen's Q & A session. He stated that because the village has not properly maintained their wells, it has brought us to this point today. At that point, Bill Loesch stepped in, said that it was “bullshit” and they continued to debate while the crowd dispersed and Dr. Jansen stepped out of the ring. Bob Mueller and Bill Loesch continued their discussion in private.

The Village Board Members that attended were:
==> Bill Loesch
==> John Alexander
==> Fred Douglass
==> Bill Joas
==> Randy Timms
==> Bill Stubbs

News Media Coverage:
==> East Troy Times
==> Milwaukee Journal Sentinel - no story in today's paper.


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August 2005 Overview of Wisconsin Law of Groundwater Withdrawal: June 3, 2005 Groundwater Advisory committee Meeting minutes

August 2005 Discussion of Groundwater Data Pertinent to the Proposed Village of Mukwonago High Capacity Well

An Open Letter on the Well to Boards of The Village, Town, PLMD, and PLYC (this should be read in conjunction with this PDF file which includes a synopsis of the discussion)

Mon, 8 Aug 2005

Dear Board Members,
 
The Mukwonago community needs to evaluate environmental impacts of the proposed high capacity well.  Last week, I talked with Bob Biebel at SEWRPC.  The two year SEWRPC regional groundwater study will NOT include creation of an inset model for Phantom Lakes.  He indicated there may be a need or recommendation to perform some additional data gathering in specific critical/sensitive areas of the south east Wisconsin region to refine the regional groundwater flow model.  But, the bottom line is that we will not receive sufficient assistance in data gathering or modeling from SEWRPC’s regional study and certainly not in a time frame to help us deal with impacts of the proposed Village well.  Our community needs to find a way to fund and undertake this effort ourselves.   Initially a two dimensional model should be developed by the Village’s consultant prior to the proposed volume pumping test.  Since the regional ground water flow model is too coarse, the community should pursue developing a three dimensional water shed inset model or a series of site specific inset models.
 
PLMD, PLYC, the Town of Mukwonago, and the Village of Mukwonago have some work to do to ensure that necessary data to analyze the Well’s impacts will be collected and that we have the tools like an inset model to evaluate and manage on a going forward basis, the use and impacts of the Village’s proposed high cap well. 
 
Attached are minutes, which all of you have previously received, from a November 11, 2004 meeting with subject matter experts (Bob Biebel, Ken Bradbury, and Jeff Thornton).  Note the conclusions reached and recommendations made.  Also, note the actions that have NOT been completed.  Allow me to quote/highlight selections from these minutes:
 
The group consensus was to pursue development of a tool to measure the impacts of all potential high capacity wells in this watershed, minimally for the next ten years, and hopefully begin soon.

Realizing that there are a number of future well proposals coming, with potential well sites around the Phantom Lakes and within the Fox and Mukwonago watershed, the group endorsed the larger-scale approach as an opportunity to avoid duplicating tests every time a new site was being considered, while, at the same time, providing a tool to address the immediate issue of the proposed site and well.
 
Ken Bradbury talked more about the GFLOW and WinFLOW models.  He explained that these models are two dimensional and fairly easy to develop. They would allow a “first cut” at an assessment that could support more detailed evaluations as part of the proposed pump test. The group agreed that a two dimensional model was desirable and that Jon Jansen could develop it.
 
Ken therefore agreed with Bob’s earlier statement that there was likely to be an impact since you “do not get something with nothing in return”—referring to the interconnectedness of the surface and ground waters of the Mukwonago River Basin.
 
Ken Bradbury indicated that the best way to assess the potential impact of a high capacity well on the YMCA property would be through a ground water flow model with the lake simulated as well as the high capacity well. This could provide a pretty precise answer that could be field tested.  The USGS Modflow Model© could be used for this purpose, but it is fairly complicated.
 
The tests should be conducted for 72 hours or more—until the monitoring points reached a steady state. It was thought that maybe they shut the test down too soon at Lake Beulah, before a steady state had been reached. Ken Bradbury strongly encouraged the longer tests for better information.  The WinFLOW or GFLOW Model® tests this type of hypothesis and could provide more accurate information prior to the field test.  This should be encouraged.
Dave Dubey asked how do we encourage the Village to do these tests?  Ken Bradbury thought that running the tests longer could be done for a minimal cost.  The big cost is putting in the wells, the pump and disposing of the water from the tests.  Therefore, he suggested that the Town or District might offer to pay for the incremental cost of running the pump for a few more days and someone to measure the water depths in the wells. The additional data gained would be much more accurate and valuable and well worth the expenditure. The piezometer wells would be easy to install and this definitely should be done. He indicated that it would be reasonable to have the Lake District and Town suggest these additional steps and, if necessary, offer to pay for them or split the costs rather than pay for a separate hydrologist and testing.
 
Rather than wrestle over PLYC’s conditional use permit, the focus should be on working with hydrologists and other subject matter experts to collect all the necessary data to model and scientifically evaluate impacts of the proposed high capacity well.
 
Thank you for giving these recommendations your prompt attention.
 
Richard Jenks
Mukwonago, WI

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May, 2005:
Well Update Draws Crowd To Lake Association Meeting (East Troy Times 5/25/05) http://easttroytimes.com/PDFs/5105.pdf

March 25, 2005:
Legislative update
By: Assistant Majority Leader Neal J. Kedzie
Wisconsin’s 11th Senate District

As Earth Day Approaches - Groundwater Advisory Committee Begins Work

Often getting legislation passed through the Legislature and signed into law by the Governor is just the first of many steps to be taken before much needed public policy can actually become a reality. Such is the case with the Groundwater Protection Act (2003 Act 310), which I authored and was enacted nearly one year ago.  

One of the provisions of the Groundwater Protection Act was the formation of a fourteen member Groundwater Advisory Committee charged with establishing many of the administrative rules needed to facilitate the new law. That committee has just started to work on the numerous responsibilities, which must be completed prior to January 1, 2007.  

Under Act 310, groundwater management areas were established in Southeastern and Northeastern Wisconsin, most notably Waukesha and Brown Counties, respectively. Those areas were designated as such because declining groundwater levels have become a chronic concern. The Groundwater Advisory Committee will recommend any additional legislation needed, as well as administrative rules to address groundwater usage and concerns in the groundwater management areas. Should the committee deem it necessary, the members may also designate other areas in the state as groundwater management areas. Additionally, the committee must determine what progress would need to be made in regard to an area’s groundwater situation before the designation of groundwater management area could be removed.  

Crafting the Groundwater Protection Act required considerable attention to the many facets of the use of groundwater. We needed to strike a balance between protecting the resource by limiting or disallowing significant groundwater withdrawals, yet ensuring that small businesses, farmers and municipalities are able to obtain the water they need. To that end, the DNR will not have the authority to deny an application for a small private well. However, language included in the bill makes it easier for the DNR to track the number and location of wells. This provision was integral to the continued protection of these areas because it will allow for future assessment of any cumulative impact on the groundwater supply.  

The Groundwater Protection Act also established groundwater protection areas, which are located within twelve hundred feet of an outstanding or exceptional water resource or certain trout streams. In those areas, anyone wishing to site a high capacity well would have to apply to the Department of Natural Resources (DNR) for a determination to be made whether such a well would have a negative impact upon the water resource or trout stream. A high capacity well is defined as one, which would draw more than 10,000 gallons a day. When one is proposed, an approval process must be followed to assess the effect it would have on nearby lakes, streams and other sensitive water resources.  

The Groundwater Advisory Committee will determine what factors the DNR should use in the process of determining if a high capacity well should be permitted. This is a key component in balancing the protection of our most valuable natural resource with ensuring that we do not place unduly burdensome restrictions upon economic development.  

Stakeholders from various groups with extremely diverse interests worked with us to draft the initial groundwater protection act. Participation by conservation groups, sporting clubs, representatives of municipalities, builders, manufacturers, and agricultural groups allowed for input on the bill from a multitude of different viewpoints on the issue. We could not have passed this significant legislation or had it signed into law by the Governor without the give and take of the representatives from these groups. The Groundwater Advisory Committee must now iron out the many nuances needed for this significant environmental measure to succeed. I am confident members of the committee will be mindful of the foundation laid to protect Wisconsin’s groundwater supply, and build upon the goals we have already achieved.         

Sen. Kedzie can be reached in Madison at P.O. Box 7882, Madison, WI 53707-7882 or by calling toll-free (800) 578-1457. He may be reached in the district at (262) 742-2025 or through a link on the State of Wisconsin Web site at www.wisconsin.gov.

February 2005:
High Capacity Well Law Reform
On February 11, 2005, Richard Jenks, a leader in the fight over a proposed high-capacity well in Mukwonago, sent an e-mail alerting interested parties of an August 2000 study done on such wells. See the attached text of the e-mail and executive summary of that study (link here). The full text of the study can be obtained here (link here). LBPIA President Paul Didier responded with these remarks on the frustrations being felt by many of those aware of Lake Beulah’s precarious situation (link here).

January, 2005:
In July 2004, a State Administrative Law Judge denied the LBMD and LBPIA's petition for a contested case hearing on the Village High Capacity Well #7. LBMD and LBPIA both appealed this decision in Walworth County Circuit Court. The deadline for filing of legal briefs has been extended for both appellants until February 15th 2005 in hopes that a resolution can be reached between the Village and the appellants. Also the Town's lawsuit against the Village on its annexation of the Grafenauer/Thomas property was dismissed by the Walworth County Circuit Court in November 2004. It is the LBPIA's understanding that the Town of East Troy's Attorney has since appealed that decision.

More will be coming but for now we are operating under a stipulated agreement among the parties to extend the deadline to file reply briefs to Feb. 15th to allow time to see if the parties can reach a resolution to the current court appeal.

Send "well" comments to:

lakebeulahwell@sbcglobal.net
Lake Beulah Management District
P.O. Box 71
East Troy, WI 53120


To be notified of updates to this site e-mail lakebeulahpia@gmail.com


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