By Steve Loe
In September 2013 alarmed retired Forest Service employees (Gary Earney and myself), who had worked for the San Bernardino National Forest for over 50 years combined, raised a concern about the taking of so much water from Strawberry Creek, at an elevation above 5,000 feet in the San Bernardino Mountains, during the most severe drought in over 300 years. Nestlé was diverting all of the natural spring flow from the most productive springs in the watershed under a long-expired special use permit with few protective measures.
The public was being forced to ration water during this drought, while Nestlé was taking every drop from the springs that shared some of the same groundwater as the mountain communities of Crestline, Lake Gregory and Lake Arrowhead. Flows downstream to the San Bernardino Valley and Bunker Hill Basin for domestic use were being reduced by Nestlé while the Valley residents were rationing water.
Many threatened, endangered and sensitive Forest Service species are currently and were previously located in the Strawberry Creek drainage and are dependent on year-round water. The habitat for these species, including the southern rubber boa, the least Bell’s vireo, the southwestern willow flycatcher, the mountain yellow-legged frog, and the California spotted owl has been significantly degraded by Nestlé, its corporate predecessors and its corporate successor, BlueTriton, for over 90 years. Imperiled native fish species have been wiped out in large part due to removal of such large amounts of water in the summer months. Strawberry Creek was home to the Santa Ana speckled dace and likely the Santa Ana Sucker and the Arroyo Chub. Speckled dace were eliminated from the stream in 2003 in large part from spring water removal and lack of summer flows, after being there for thousands of years. Other more common species such as deer, bear, songbirds, rare plants and insects have been adversely affected by the spring and stream diversion.
Drying the vegetation below the communities by taking all the water from the upper watershed is increasing the fire threat to the communities.
Earney and I asked the Forest Service and Nestlé to meet and consider releasing some water into the stream until the drought subsided, but they both refused to take any action. The Forest Service would not meet to discuss the issue. Nestlé refused to meet with Gary Earney because it said he had not been good to them when he was in charge of administering the permit. Nestlé officials met with me and said they would not reduce the amount of water they were taking. They said that they would take more water if they could. They said they had an absolute right to the water recognized by the State of California.
The public became very concerned about the permit and could not understand why the Forest Service didn’t take action as required by law, policy, and the San Bernardino National Forest Plan.
The U.S. Forest Service had developed a very close relationship with Nestlé and the company was being treated differently than other special use permittees. Other permittees, even special use recreation cabins owned by struggling residents, were made to modify their use of water to protect the streams when their permits were renewed, yet Nestlé was being allowed to dewater a very important stream supporting threatened, endangered, and sensitive species with no mitigation required. The environmental documents and resource protection measures relating to that permit had expired over 20 years before, along with the expiration of the permit. New species had been found and listed without any change to operations.
The greatest public outcry and public lawsuit ever directed at the San Bernardino National Forest from the Save Our Forest Association, the Audubon Society, the Sierra Club, the Story of Stuff Organization, and many other groups and individuals on the mountaintop and throughout the country (along with the exposure of the absurdness by Desert Sun investigative reporter Ian James and an FBI investigation) got the Forest Service to finally take some action on the 20+ year-expired permit. The Forest Service finally relented and agreed to do a National Environmental Policy Act review.
With all the public outcry and the significance of the decision to the public and natural resources, the Forest Service should have required an environmental impact statement with regard to the continuation of the expired permit, which would have resulted, at the least, in some release of water into the stream. Instead, the Forest decided to do a categorical exclusion which is supposed to be used for routine permit reissuance where nothing is really changing and there are no significant impacts from continuing the use. The continued taking of the spring water had obvious and significant long-term impacts to riparian habitat, threatened and endangered species and downstream users, but the categorical exclusion allowed Nestlé to continue the use as it was.
Nestlé threatened in the local press that it would sue the Forest Service if it sought to reduce the company’s water diversion through the National Enviornmental Policy Act process. The Forest Service and Nestlé proposed long-term studies of adjacent watersheds. Scientists most familiar with the local ecology who reviewed the proposed paired basin studies questioned its design and ability to predict for Strawberry Creek. The permit renewal resulted in no reduction in water removal in the resulting 5-year permit, only studies and monitoring to be conducted by Blue-Triton, which succeeded Nestlé as the Arrowhead Water bottler as a consequence of One Rock Capital Partners, LLC/Metropoulos & Co.’s purchase of Nestlé’s North American bottling operations with the exception of Perrier.
The various environmental groups and citizens concerned about the water depletion in Strawberry Creek filed petitions and letters of concern to the California State Water Resources Control Board. Based on that public concern, the Board evaluated and studied the history and background, largely provided by local Redlands citizen Amanda Frye. The Board issued a cease-and-desist order due to Nestlé’s/BlueTriton’s lack of legal water rights and the fact that the water source in Strawberry Canyon consisted of natural springs. Nestlé/Blue Triton appealed that order and the Board had hearings. Save Our Forest Association President Hugh Bialecki, Amanda Frye and myself were involved in and provided testimony over many months. The Save Our Forest Association, the Sierra Club and the Center for Biological Diversity were active participants in the hearing.
The Board hearing and all of the data and historical documents confirmed what the public had contended all along: Nestlé/Blue Triton did not have a valid state surface water right. The springs that are now tapped before they reach the surface were all natural springs with lush riparian vegetation and year-round surface water miles downstream. The cataloging of the water flow in Strawberry Canyon from on-the-ground monitoring in a drought period (1928-1930) carried out by W. P. “Penn” Rowe, a civil engineer who had made extensive field notes of the springs in Strawberry Canyon in the 1920s and 1930s, have now established that the stream had been severely altered by the illegal diversion.
Based on months of hearings and documentation of the real history of the springs, the Board issued a final cease-and-desist order. As expected, BlueTriton filed a lawsuit to stop the Board from enforcing the cease-and-desist order. The citizens and environmental groups knew that a lawsuit would be filed as Nestlé/BlueTriton always used delay tactics to stop enforcement of actions that would reduce the taking of water.
The public and groups were not worried about this lawsuit because they knew the Forest Service had the authority to restrict the diversion of water and protect the National Forest and downstream users, regardless of the lawsuit. Based on the new historical data on stream flows and the State water rights experts’ determination of no water rights, we assumed the Forest Service would take some action to get water back into the stream as it is backed by the law, policy and the land management plan.
This was not the case. Forest Service officials told us they were worried that the State lawsuit made it more of a problem for the Forest Service to take action, and that it would be sued by BlueTriton if the Forest Service took that action. The officials said the Forest Service had been threatened by Nestlé before if they proposed reducing the taking of water.
Many others and I have been telling the Forest Service that it is clear now that the State of California and Forest Service have the right to curtail the taking of water for bottling by BlueTriton and there is no excuse for not moving ahead to restore the stream and the watershed. The National Forest Service says it is moving ahead to do something but needs to be very careful and deliberate.
However, here we are 10 years later and there is still no requirement for BlueTriton to release any water to the stream.
Due to the frustration with the Forest Service for refusing to take any action in 10 years, the concerned public has reached out to the Department of Fish and Wildlife to enforce the need for a streambed alteration agreement as required in California and made a term of the BlueTriton permit.
By law, BlueTriton has to have a streambed alteration agreement in order to continue their diversion of the spring water and the diversion of the stream in upper Strawberry Creek. State law and Forest Service permit requirements are that BlueTriton must obtain a streambed alteration agreement. The stream has been completely dried up by BlueTriton and BlueTriton needs to put some water back in the stream to meet state and federal requirements. We now have historical information that shows the flows in the springs and the streams even during drought years. Restoring water back to Strawberry Creek will make a huge difference in the watershed for all of the plant and animal species. In addition, having Strawberry Creek restored as a wet ecosystem instead of a dry ecosystem will have an effect on the ability to control wildfires threatening the community in the front country. A well-watered watershed with water and Strawberry Creek flowing would provide water for firefighting and a much better place for firefighters to defend than in its current dry state. The Santa Ana speckled dace, a Forest Service sensitive species, and one of the most imperial species in Southern California, was eliminated from Strawberry Creek in the last 100 years with diversion of all the summer flows in the headwaters by Nestlé/BlueTriton. Restoring dace along with other native species that were probably there such as the arroyo chub and the Santa Ana sucker will be a high priority for the state and federal government when water is restored.
Blue Triton has refused to get an agreement from Fish and Wildlife, saying that there was no impact to the springs or the stream because it takes the water before it gets to the surface. That is the problem. There is no surface water where there should be a flowing, thriving stream. The summer months from June through September are the hardest on the watershed and its plant and animal life. That is the time of year when species are nesting, frogs are breeding, etc. If BlueTriton was willing to work with the Forest Service and Fish and Wildlife, water could be released into Strawberry Creek this summer and the summer drought and severe impacts downstream could be avoided. However, BlueTriton has refused to put one drop of water into the stream to benefit the stream. The Forest Service and Fish and Game have the authority to require releases.
Strawberry Creek is public water. The National Forest and the public have a right to push for the stream’s protection. We are hoping that the agencies will stand up to the wealthy bullies – BlueTriton – and put water back into our stream.
Steve Loe is a former National Forest Service biologist who spent much of his career assigned to the San Bernardino National Forest.