By Mark Gutglueck
A former San Bernardino National Forest biologist has taken issue with the decision by the management of the National Forest to allow the Swiss-owned Nestlé Corporation to continue its water extraction in conjunction with that company’s bottling operation in the San Bernardino Mountains.
In June, the U.S. Forest Service moved to conditionally renew for three years Nestlé’s expired permit to draft water from the San Bernardino Mountains.
The water Nestlé removes from Strawberry Canyon at the approximate 5,000 foot elevation level in the San Bernardino National Forest by means of a series of boreholes, horizontal wells and pipes is bottled and marketed under the Arrowhead Spring Water brand. Based on a tangle of water rights claims that in some cases are valid, in other cases disputed, and in yet others based on conflations or questionable interpretations of the public record and in still others demonstrably inapplicable, Nestlé and its litany of predecessors-in-interest have been capturing water at various elevations in the San Bernardino Mountains for over a century and utilizing it for commercial purposes. The word “Arrowhead” was time and again associated with many of those water pumping and bottling operations, including the names used by the Arrowhead Hot Springs Company, the Arrowhead Cold Springs Company and Arrowhead Puritas.
The June decision to allow Nestlé to continue extracting water from Strawberry Creek came after a three decade delay. In 1978, Arrowhead Puritas renewed that permit for transporting the harvested water from Strawberry Canyon for ten years. While still holding that permit, for which it paid $524 per year, Arrowhead Puritas was bought out by Beatrice Foods and then morphed into the BCI-Arrowhead Drinking Water Company as a consequence of Beatrice’s bankruptcy. In 1987, Perrier purchased the BCI-Arrowhead Drinking Water Company, in so doing acquiring the still-active permit. Prior to the permit expiring the following year, Beatrice had applied to renew it. Such a renewal required a U.S. Forest Service review of the water drafting arrangement and its environmental/ecological impact, which at that point the U.S. Forest Service did not have the immediately available resources to carry out. In a gesture of compromise, Perrier was allowed, pending the eventual Forest Service review, to continue to operate in Strawberry Canyon by simply continuing to pay the $524-per year fee to perpetuate the water extraction under the terms of the expired permit. In 1992, when Nestlé acquired the Arrowhead brand from Perrier, it inherited the Strawberry Canyon operation and continued to pay the $524 annual fee without renewing the permit, which at that time existed under the name of the “Arrowhead Mountain Spring Water Co.”
Environmentalists protested and to no avail pushed the U.S. Forest Service to undertake an intensive review of Nestlé’s water extraction in Strawberry Canyon. In 2015, the Center for Biological Diversity, the SOS Project, and the Courage Campaign filed a federal lawsuit, seeking to have the Forest Service halt Nestlé’s use of wells and piping in the forest. The plaintiffs alleged that Nestlé’s continued diversion of water after the permit had expired was illegal and that the continued water pumping was wreaking ecological harm to Strawberry Canyon. In September 2016, U.S. Judge Jesus Bernal ruled that Nestlé’s water use should not be interrupted because its predecessor, Beatrice, had initiated efforts to obtain a new permit from the Forest Service and had not gotten a response from the agency. In November 2016, the Center for Biological Diversity, the SOS Project, and the Courage Campaign appealed Bernal’s ruling. This year, those groups agreed to drop the appeal in return for an expedited determination of the continuation of the permit.
In a decision memo issued on June 27 and signed by San Bernardino National Forest District Ranger Joseph Rechsteiner, The U.S. Forest Service gave Nestlé clearance to renew its permit for three years with a potential two year extension. That continued water extraction is to be subject to a complex of conditions and restrictions. The decision was memorialized in what was termed a categorical exclusion and decision memo.
“I have decided to approve the continued occupancy and use of National Forest System lands for the extraction and transmission of water using existing improvements, subject to resource mitigation measures designed to ensure compliance with the Forest Service’s land management plan,” Rechsteiner wrote in the memo.
Rechsteiner said “The resource mitigation measures are designed to ensure that the impact to natural resources will be minimal [and] may improve resource conditions when compared to the existing condition. These resource mitigation measures protect and do not infringe upon water rights for developed spring water held by Nestlé under California state water law, as described by a recent report from the California Water Resources Control Board staff. The adaptive management plan provides the permittee with operational flexibility in how those resource measures will be addressed.”
Steve Loe, who is now retired after having served as the San Bernardino National Forest biologist for 30 years, in a letter to Reichsteiner and his two supervisors, USDA Forest Service Regional Forester Randy Moore and Jody Noiron, the forest supervisor for the San Bernardino National Forest, said he believes the renewing of Nestlé’s permit is continuing to damage the forest.
“In my last 10 years working for the Forest Service and as a Forest Service contractor, I served as the lead biologist on the Arrowhead Tunnel Project, the largest tunnel ever on a national forest. Strawberry Creek was within the project study area. During this project, we learned more than ever about surface/groundwater relationships on San Bernardino front country streams, springs, and seeps and their geology, hydrology and biology,” wrote Loe. “The use of a categorical exclusion and decision memo which greatly restricts public and scientist involvement and review, as well as the decision to continue removal of hundreds of millions of gallons of water during this terrible drought are illegal and unauthorized and very concerning to me and thousands of members of the public and scientific community.”
Loe said the renewal of the permit will allow Nestlé to “take hundreds of millions of gallons of water from the headwaters of one of the few perennial streams on the San Bernardino National Forest. Through a Freedom of Information Act request, we understand that you, under the administration’s orders are using a decision memo to limit further public involvement and preclude review and comment. However, from my understanding of the process and current direction and policy, this authorization should have been supported by at least an environmental assessment and decision notice with a high level of public involvement, review, collaboration and opportunity to appeal, not a decision memo.”
Loe said Reichsteiner had cherry picked data to support a pre-arranged conclusion to continue Nestlé’s water use instead of doing a straightforward scientific analysis.
“Rather than use direction and public input to determine what National Environmental Policy Act tool and process to use, the political decision was made and the National Environmental Policy Act documents were chosen and written to justify the decision,” Loe said. “None of the Forest Service experts I have worked with would ever use a categorical exclusion and decision memo for this significant of a permit that has been expired for 30 years with no environmental protection update and huge public and scientific concerns. This decision does not pass the red face test.”
Loe said, “Taking hundreds of millions of gallons from the stream, springs and seeps (especially during the severe drought) is a significant adverse impact. With this severe drought, no scientist would say there is excess water. Any new permit must protect the stream during drought. The decision indicates there will be no adjustment to the amount allowed for removal until Nestlé proves with their studies and monitoring that they are taking too much. There is a high level of uncertainty regarding the taking of water and effects on the stream, spring, and seeps and the plants and animals that depend on them. We know summer low flows are adversely affected. We know that this drought is resulting in flows at historically low levels. A categorical exemption and decision memo are to be used when everything is going well, there aren’t significant unknowns, and the new permit doesn’t make significant changes. This permit and its approval are not that case and a categorical exemption and decision memo should never have been used. To do so is an obvious breach of public trust in the agency to take care of our public lands. There are numerous threatened, endangered, and sensitive species that are all dependent on healthy, well watered sites and soil moisture that are affected by this permitted removal of water. During breeding season, surface expression in the streams, springs and seeps is severely limited and adversely affected by unnatural diversion. The adaptive management plan approved in this decision has not even been developed yet. Numerous scientists made comments on and wanted to be involved in any adaptive management plan. With the plan not developed yet for review and comment, there are huge unknowns. Using a decision memo to avoid public and scientific involvement, potential alternatives, and review is a flagrant violation of the letter and intent of National Environmental Policy Act.”
Loe continued, “We are in the midst of a terrible drought. Flows in Strawberry Creek are at historically low levels. Fish and other aquatic species rescues are being conducted throughout Southern California for fear that the streams could go dry. Taking any water right now from Strawberry Creek is significant. The Forest Service has the authority to stop water removal during the drought and this should have been part of the decision, not to wait for studies. Potential impacts to the Southern Rubber Boa have been totally eliminated from the analysis and decision. I hope this was by accident and not deliberate. The Strawberry Peak area was so important to the rubber boa that it factored heavily in the Forest Service decision to retain the area in federal ownership. Removing any spring or stream water anytime, and especially during this severe drought, will be a significant impact to boas in the headwaters. The southern rubber boa is a California State listed threatened species as well as the southwestern willow flycatcher and the least Bell’s vireo and will require a California endangered species permit from California Fish and Wildlife. We know that removal of surface and groundwater affects these species. “
Loe wrote, “Avoiding responding directly to specific public comments and picking and choosing what comments and questions you will respond to is also a subversion of the National Environmental Policy Act’s intent. There are thousands of members of the public who asked thousands of questions that are unanswered. Mountain residents and valley residents directly affected by Nestlé’s water removal have not had their questions answered. These public landowners are having to ration their water use, public lakes potentially affected like Lake Gregory are dryer than ever, and water rates for those affected are rising because of the need to import water. Nestlé takes pride in not curtailing their take. The fact that the Forest Service was told to use a decision memo for this project by the administration through the Washington Office does not make it right, or in compliance with laws, plans, regulations and policy.”
Loe stated, “There may never be a drought as severe as this for decades or centuries. If water removal is not curtailed at this time, then this permit is just a scam to give away the public resources. The decision must contain a requirement to stop removal until the drought subsides and the studies and adaptive management plan are implemented. If this drought is not enough to trigger taking less water, then the public can have no confidence that the stream will ever be protected under the new permit. This is a foreign company influencing our public land management and if we are going to permit this, it must be based on science and follow legal procedures. A permit without a halt to water removal during this historical drought is a significant impact. The decision memo as written and directed is just a justification to continue this significant use with known and unknown effects as-is until Nestlé proves it is taking too much water from the National Forest. This is backwards and not the intent of the laws, regulations, policy and plans. It is the duty of the proponent to show that there is excess water to the National Forest needs. This cannot be done without years of study, and years of study are not needed to immediately stop removal due to this historical drought. In the absence of long-term studies, best scientific opinion must be used. All Southern California scientists would agree that removal should be stopped until the area recovers from the drought. Then, only water that is shown to be in excess of National Forest needs should be permitted for removal.”
Near the conclusion of his missive, Loe wrote, “I request that you rescind your ranger’s decision to authorize the continued removal of state and public water by Nestlé from the National Forest in the Strawberry Creek Watershed.”
Attempts to reach Reichsteiner by press time were unsuccessful.