By Amanda Frye and Mark Gutglueck
The California Water Resources Control Board has an active investigation into Nestlé Waters of North America, Inc.’s extraction of water from Strawberry Canyon/Strawberry Creek in the San Bernardino National Forest. That diversion is taking place off Highway 18 and Red Rock Wall, which is identified on mapping documents as being located within Township 2 N Range 3W Section 30. The U.S. Forest Service has allowed Nestlé to extract upwards of 30 million of gallons of water annually from the San Bernardino National Forest without the validation of the water rights Nestlé asserts and regardless of past drought conditions, or endangered or threatened species and habitat. The State Water Board has publicly stated that Nestlé is taking forest groundwater in the upper Strawberry Creek watershed, which Nestlé then bottles and sells under the Arrowhead brand. Nestlé claims it utilizes a total of 13 different mountain springs to produce Arrowhead water, including the Strawberry Creek source and another in the foothills north of Rancho Cucamonga. According to available statistics, Arrowhead water sales account for 3.5 percent of the $11.8 billion annual spending on bottled water in the United States, or $413 million in revenue to the company.
Nestlé’s continuing operation of its Strawberry Canyon water extraction program has outraged environmentalists, who say the Swiss-based company’s huge profits continue to grow as damage to the forest continues, and endangered and threatened species and habitats suffer.
Nestlé and its corporate predecessors have been draining the Upper Strawberry Creek watershed since 1929.
The State Water Resource Control Board received multiple complaints against Nestlé last spring including a 500 signature petition. In May 2016, the U.S. Forest Service also asked the Board to investigate the validity of Nestlé’s water rights in Upper Strawberry canyon. The State Water Board conducted a site inspection of Nestlé’s diversion sites in June 2016.
The California Water Resources Control Board, known as the State Water Board, and the nine Regional Water Quality Control Boards in the state, protect water quality and allocate surface water rights.
Charged with preserving, enhancing and restoring the quality of California’s water resources and drinking water for the protection of the environment, public health, and all beneficial uses, the water boards regulate wastewater discharges into the ocean, rivers, streams, and lakes as well as into aquifers and water tables. The water boards also regulate storm water discharges from construction, industrial, and municipal activities; discharges from irrigated agriculture; dredge and fill activities; the alteration of any federal water body; and several other activities with practices that could degrade water quality.
Under its charter the State Water Resources Control Board exists to ensure proper water resource allocation and efficient use, for the benefit of present and future generations.
The water board’s investigation comes at a crucial time since the U.S. Forest Service is currently reviewing Nestlé’s pipeline permit and water diversion operation occurring at approximately 5,000 feet in the Upper Strawberry Canyon watershed. This review is being carried out under the auspices of the National Environmental Policy Act, the outcome of which could provide Nestlé with the ability to continue forest groundwater withdrawals from the endangered watershed for the next generation. The pipeline permit to transport this extracted water through the San Bernardino National Forest expired 30 years ago, but has remained in effect for three decades while federal officials have dithered in undertaking a comprehensive environmental review that would either justify the active renewal and extension of the permit or mandate its termination.
Nestlé Waters of North America, a corporate subsidiary of the Swiss-owned Nestlé Corporation, acquired the expired permit from Perrier when it bought out that entity in 1992.
Perrier had acquired the permit when it purchased the BCI-Arrowhead Drinking Water Co. in 1987, at which time the permit was yet active. That permit allowed the holder to extract water from a significant below-ground source in the San Bernardino Mountains.
In May 1987, Perrier filed a letter with the United States Forest Service, prior to the permit’s expiration, seeking the permit’s extension. The Forest Service deemed that letter a “timely and sufficient application for renewal,” and instead of carrying out a full environmental review to issue a new permit, it merely accepted the $524 Nestlé and its corporate predecessors previously paid as an annual permit renewal fee. Nestlé has now made 29 and counting annual extensions of the expired permit. Nestlé continues to pay $524 each year to perpetuate that renewal process for a permit that was originally issued to what was at least the fourth corporate predecessor to the current Nestlé’s Arrowhead water bottling operation.
Because of mounting pressure put on it by environmentalists and California citizens, the U.S. Forest Service in 2015 agreed to make the review of the permit under the National Environmental Policy Act (NEPA), proceedings which commenced last year.
The Sentinel obtained access to a letter from The U.S. Forest Service that states “the San Bernardino National Forest is currently working with Nestle Corporation to evaluate its permit and environmental impacts of Strawberry Creek.” Nevertheless, many environmentalists insist that the U.S. Forest Service’s evaluation of Nestlé’s permit is collusive in nature instead of an independent objective evaluation. Nestlé is paying for the evaluations.
The State Water Resource Control Board database reflects that Nestlé’s water diversion on U.S. Forest land at 5,000 feet in Strawberry Canyon is recorded as groundwater extractions. These wells are listed as belonging to Arrowhead Drinking Water Co., which is a “surrendered,” i.e., no longer existing, corporation, according to the Secretary of State database. State Water Resource Control Board spokesperson Tim Moran said, “If our ownership records are different from actual ownership, it is because we have not been notified. The listing of Arrowhead as primary owner does not necessarily mean that Nestlé does not own the rights. Nestlé may own the right and it simply never updated the record.”
Arrowhead Drinking Water Co. was the name Arrowhead water legally operated under during its ownership by the Beatrice Foods Company. The name changed in 1987 when Beatrice sold Arrowhead to Perrier. In 1987, the legal name became Arrowhead Water Corp.
The San Bernardino Valley Municipal Water District is the local agency appointed by the State Water Resource Board to receive the groundwater reports relating to Strawberry Canyon. The San Bernardino Valley Municipal Water District collects ground water recordation reports submitted by Nestlé. According to San Bernardino Valley Municipal Water District, Arrowhead Drinking Water Co. is the name of the groundwater recordation filings on Nestlé’s wells in upper Strawberry Canyon. Since 1947 Nestlé and its predecessor have reported groundwater withdrawals in upper Strawberry Canyon on National Forest lands. The State Water Resource Control Board confirms that most of these groundwater filings were in 1957 by Nestlé’s predecessors-in-interest.
The State Water Resource Control Board has confirmed that Nestlé’s “spring water” extractions are reported as 12 site “groundwater recordations.” In fact, the only appropriated spring water right for this location is the U.S. San Bernardino National Forest, which is confirmed by the State Water Resource documents. The spring historical flow has been listed as 10,000 gallons per day. In 1940, the State Water Resource Board confirmed to the U.S. Forest Service that the U.S. Forest Service is the only holder of water rights in this quarter section.
Overlaying landowners have the groundwater rights, according to the State Water Resource Control Board. “Groundwater may be appropriated for use outside the basin, but appropriator’s rights are subordinate to overlying rights,” according to the water board. The site of Nestlé’s groundwater land is U.S. Forest land. Therefore, the U.S. Forest Service is the overlaying landowner where Nestlé is taking the groundwater. The State Water Resource Board website describes federal reserved rights as “the water set aside by the federal government when it reserves land for the public domain.” This section of the San Bernardino National Forest was established on February 25, 1893. The federal government gave public notice on April 2, 1894 for any legitimate claims to be filed within 90 days. There is no proof that any of Nestlé’s predecessors had legitimate pre-1914 claims in the upper Strawberry Creek watershed in the National Forest (Township 2 North Range 3 W Section 30 SBBM).
The validity of Nestlé’s asserted water rights are being challenged. Nestlé and its corporate predecessors have relied exclusively on an unchallenged permit by the U.S. Forest Service. Nestlé asserts that its water rights in the Upper Strawberry Canyon go back to a possessory claim for 160 acres at 2,000 feet. This possessory claim is in a completely different township and range over two miles distant and at an elevation 3,000 feet below the disputed groundwater withdrawal site. The possessory claim involves no water claims in the Upper Strawberry Canyon watershed at 5,000 feet. Furthermore, subsequently filed and recorded legal documents associated with the possessory claim lands show no water rights in Upper Strawberry Canyon. A 1915 deed for the possessory claim property shows no claims in Upper Strawberry Canyon, which supports that Nestle has no pre-1914 rights in Upper Strawberry Canyon.
Court pleadings from litigation referred to as the Del Rosa lawsuit constitute other documents that Nestlé offers as proof of water rights. However, the Forest Service is not a party to the lawsuit and it is never mentioned that the land and water is within the San Bernardino National Forest. The lawsuit judgment awarded California Consolidated Water was for “spring water” in Upper Strawberry Creek. The judgment only mentioned sections 31 and 32, with no mention whatsoever of section 30, the site of Nestlé’s current groundwater withdrawal.
Moreover, under the California Water Code, diversions of water from surface or subterranean streams require an appropriative permit issued by the State Water Board unless such diversions are made relying upon an existing riparian right or an actual pre-1914 appropriative right. An examination of the documents Nestlé asserts in making that claim do not appear to validate its right to the water it is using.
Nestlé spokeswoman Jane Lazgin did not return phone calls seeking comment.
The Women League of Voters and Save Our Forest Association will be hosting a forum to discuss the Nestlé water diversion issue on Sunday, January 29 at Twin Peaks Community Center starting at 2:00 pm. A second meeting will be held Monday, January 30 6:00-7:30 pm at the San Bernardino Valley College Library Meeting Room, 701 South Mt. Vernon Ave, San Bernardino, CA 92410.
By Amanda Frye and Mark Gutglueck