SAN BERNARDINO, CALIFORNIA: NESTLE STRIKES AGAIN
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By Ronan O"Doherty
The folks at Nestle Waters North America will be happy to have 2017 in their rear view.
Across the continent the company has been fighting activist groups and local government, with the latest volley being fired courtesy of a 37 page report from the State Water Resources Control Board of California, which alleges that the company has been taking more than its allotment of water from a national forest in a state that is notably prone to drought.
The report, which followed a 20 month investigation by the board, was compiled after a range of complaints and an exposé written by local newspaper, The Desert Sun
According to a letter accompanying the report, "The complaints contain many allegations, including diversion of water without a valid basis of right, unreasonable use of water, injury to public trust resources, and incorrect or missing reporting."
Amanda Frye, an avid hiker who lives near the forest and can see Strawberry Peak from her house, was one of the first people to file a formal complaint against the Swiss multinational company, which has been taking water from Strawberry Creek within the San Bernardino Forest under its Arrowhead label.
"The mountains are an integral part for any resident here," Frye said, "I've been fortunate enough to hike most of the Strawberry Creek area and have been able to see what the situation is up close. I can tell you that the headwater springs is only damp and the upper Strawberry Creek bed is dry and that's where Nestle (and the companies before them) had been drawing millions of gallons of water since 1930."
Frye said that if you go a little lower down the mountain there's a confluence where east and west Strawberry creek come together and claims that there is a significant difference between the two sides.
"The east side is rapidly flowing and deeper," she said," And when you go up a little bit on the west side there's barely any water flow and it's stagnant.
Where the original spring used to flow eight to 10 thousand gallons a day, it is now dead and you can see the pipes where Nestle is taking the water and hear the water gushing through the pipes."
Seeing the spring being reduced to a trickle prompted Frye to take action, so she and her spouse began taking a peek into what was going on.
"My husband is a GIS expert," Frye said, " We started looking to see if they had water rights. The name Nestle never came up but we found Arrowhead Drinking Water. Nestle was still filing under that name and hadn't even updated with the state. I found the claim in the archives and it was only for the base of the mountain.
Steve Loe of the Southern California Native Freshwater Fauna Working Group also filed a complaint against Nestle Waters North America on June 3 of 2016.
Loe was the forest biologist for roughly thirty years and said he was intimately involved with a diversion of water project from that stream in which he studied the waterway's biology. He said that the Metro Water district of LA put one of their largest tunnels several miles from where that creek is and while on the project he learned a lot about surface and ground water relationships.
The state's water troubles at the beginning of the decade were what really pushed him to get involved further with this issue.
"In 2013 and 2014 our drought was terrible," he said, "We first went to Nestle and the forest service and said in light of this drought we're having, we need to do something about this water but Nestle and the forest service both refused to meet. I think it was because Nestle had so much power that the forest service was afraid to take them on."
Loe said that he and other similarly concerned people tried to drum up public pressure.
"For many years we thought there were water rights issues there but we didn't have the time to delve into it. But the stream was down to nothing almost and Nestle was continuing to take every bit of water they could possibly get. We all started demanding that something be done and got 200,000 petitions signed," he said, "Which got the forest service to at least start on the environmental process."
Chief Deputy Director Jonathan Bishop of the State Water Resources Control Board was able to give some idea of what to expect for the future.
"It's still pretty early," Bishop said, "I wouldn't expect to hear from them until closer to the 30 day period but I expect them to reply and contest the findings."
He said that the board's staff has finished the investigation as well as the report and it appears that Nestle may be using more water than they have water rights to now.
"Water rights in California are first in line, first in right," he went on to say, "People have the right to use the water but sometimes we have to follow up. You have to look at the different water rights. There are appropriative rights and riparian rights, which are only allowed for on property use adjacent to the river."
The report makes the claim that given the findings, Nestle only has rights to 26 acre-feet per annum (AFA).
"Groundwater is a different system," Bishop said, "As long as it's not a part of an underground stream and if it's not then they can use it. You can use springs as long as they wouldn't flow off the site, they have to fit together and that's why it's complicated."
He said that the board gives people the opportunity to correct findings but from what they could tell over a two year investigation, Nestle appears to be using more appropriative water rights than they have a permit for.
When asked if this was heading for the courts, Bishop was of the opinion that litigation is still a ways down the road.
"They have a right to a hearing (before the state water control board) if we determine, after they submit additional documentation, that they do not have significant water rights. If at the end of that they disagree with what the board concludes, then it could go to litigation."
A spokesperson for Nestle Waters North America provided this reporter with the following statement as a response to the report.
"In its initial report, the State Water Resources Control Board (SWRCB) staff has acknowledged that Nestle Waters North America (NWNA) has valid, pre-1914 surface water rights for 26 acre-feet per year, as well as long-standing groundwater rights for 126 acre-feet per year--for a total of 152 acre-feet (or 49.5 million gallons) of water per year. In addition to having rights to the 152 acre-feet per year affirmed in the initial SWRCB report, we believe we have valid rights to additional water in Strawberry Canyon.
As the preliminary report states, this process is not complete and NWNA has the opportunity to provide additional facts to staff which could change the conclusions and recommendations of the initial draft of the report. We are working to provide the SWRCB staff with the historical data to validate our additional water rights, including century-old documents to the extent they are available. In the meantime, we will continue to comply with all applicable laws with respect to our water collections."
With pressures like that on their business in California, as well as those in Michigan and in Ontario here in Canada, Nestle might be feeling under siege to continue supporting a business which has been a cash cow for them.