U.S. Forest Service sued over Nestle water permit

Three environmental groups sued the U.S. Forest Service on Tuesday for allowing Nestle, the country’s largest bottled water producer, to pipe water out of a national forest for years using a permit that lists an expiration date of 1988.

The lawsuit was filed in U.S. District Court by the Center for Biological Diversity, the Story of Stuff Project and the Courage Campaign Institute.

The groups said the Forest Service has violated the law by letting the company draw water from the San Bernardino National Forest without a valid permit. They argue the taking of water threatens sensitive habitat along a creek, and they are demanding the agency halt Nestle’s use of wells and a water pipeline in the forest “unless and until it issues a valid special use permit.”

The groups brought the suit after a series of investigations by The Desert Sun revealed that the Forest Service has long allowed the company to keep using the old permit, and that officials failed to follow through on plans for a permit review that would have involved an environmental study.

“We want better management of public lands,” said Rachel Doughty, a Berkeley-based environmental lawyer representing the Courage Campaign Institute and the Story of Stuff Project. “Right now, it really feels like the primary emphasis is letting Nestle take water. They’ve delayed the permit review for years and years and years, and let them continue to operate without a permit.”

The Forest Service in August said officials plan to begin studying the renewal of the company’s permit. The agency has told Nestle that until it decides on the company’s application, its current permit remains in effect.

Forest Service Press Officer John Heil said in an email that officials “will develop a proposed action for the issuance of a new Nestle permit which the public will then be invited to review and comment on before next steps are taken.”

When that process will begin isn’t clear, but Forest Service officials have said it will be soon. Heil said he could not discuss pending litigation.

The defendants named in the suit also include Regional Forester Randy Moore and San Bernardino National Forest Supervisor Jody Noiron.

Nestle Waters North America, which bottles water from the forest as Arrowhead 100% Mountain Spring Water, is not named in the lawsuit. Jane Lazgin, the company’s director of media and corporate communications, said the company was unaware of the suit and not in a position to comment.

Nestle, based in Vevey, Switzerland, is the world's largest food and beverage company, and Nestle Waters North America runs five bottling plants in California. Some of the water is drawn from wells that tap into natural springs, including Arrowhead Springs in the mountains north of San Bernardino.

The company has said its 1978 permit continues to be legally “in full force and effect” until the Forest Service acts on it.

Nestle says it bottled nearly 25 million gallons from the national forest last year, on average about 68,000 gallons a day. That was down from about 27 million gallons during 2013.

The company’s permit – the latest in a series of permits dating back to the 1930s – was issued to its predecessor Arrowhead Puritas Waters, Inc., for the purpose of maintaining more than four miles of water pipes, water collection tunnels and horizontal wells in the national forest.

The water is drawn from about a dozen wells on the mountainside and flows through separate pipes before coming together in the single pipeline that runs along Strawberry Creek. The water is collected in a tank and hauled in trucks to a bottling plant in Ontario.

The Forest Service does not collect fees for the water. It has been charging Nestle an annual permit fee of $524.

Critics including former Forest Service employees have been calling for a thorough environmental review, arguing the company shouldn’t be allowed to keep taking unchecked amounts of water from public lands, especially during the drought.

In the lawsuit, the environmental groups say the removal of water from the ecosystem is harming the habitat of threatened animals ranging from mountain yellow-legged frogs to birds such as willow flycatchers and California spotted owls. They point out that the wells are drilled as deep as 490 feet into the mountain, and say the habitat would be healthier if that were allowed to flow naturally through the canyon.

Earlier this year, the Courage Campaign Institute launched a petition drive demanding that Nestle stop bottling water in California during the drought. The group said more than 185,000 people added their names to its online petition.

“For us, it’s this whole privatization of public resources and profiteering off the stuff that all of us are supposed to own collectively,” said Eddie Kurtz, executive director of the California-based nonprofit. “The issue could not be more urgent, and neither Nestle nor the Forest Service showed any indication they would take action to remedy the situation.”

He said it’s the first time the Courage Campaign has decided to file a lawsuit in one of its campaigns.

The suit is also a first for the Story of Stuff Project, which has previously built its advocacy campaigns around short videos that it has produced on topics such as e-waste, the hazards of microbeads in products, and the environmental impacts of overconsumption. The group’s latest 4-minute film, about Nestle’s use of water from the national forest, was released on Tuesday to coincide with the filing of the lawsuit.

“We need to create the political and the public will to make the Forest Service do their job,” said Stiv Wilson, campaigns director for the Berkeley-based nonprofit. “We wanted a big public outcry to essentially give the political cover to the Forest Service for them to be able to do their job.”

The permit is one of hundreds the Forest Service has allowed to fall out-of-date in California. Moore, the regional forester, said earlier this year that out of about 15,000 “special use” permits in the state – for all sorts of uses ranging from cabins to pipes for city water supplies – about 4,500 permits are past their expiration dates and have yet to be reviewed. An analysis of 1,108 water-related permits showed that 616 permits, or 56 percent of the total, were past their expiration dates.

Lisa Belenky, a lawyer for the Center for Biological Diversity, said the Forest Service shouldn’t have allowed Nestle to keep operating without reevaluating the permit.

“It’s basically an unpermitted use, an unlawful use,” Belenky said. The plaintiffs argue that the Forest Service has been violating the Federal Land Policy Management Act and the Administrative Procedure Act.

Documents obtained by The Desert Sun have shown that in the 1990s and early 2000s, there were discussions about conducting a review of the permit and carrying out environmental studies, but then the efforts stopped. The records also show that at times, Forest Service officials turned down requests by Nestle and by Arrowhead’s previous owner to tap more water sources in the forest.

In explaining the nearly three decades of inaction on the permit, Forest Service officials have cited a heavy workload of other priorities, wildfires and floods, a tight budget and limited staffing. The national forest allowed Nestle to rebuild portions of its pipeline after it was badly damaged in 2003 during the Old Fire, which set off deadly floods and mudslides.

Gene Zimmerman, the forest supervisor who was in charge at the time, retired in 2005. He now does paid consulting work for Nestle.

In their lawsuit, the environmental groups say the Forest Service “has never confirmed that Nestle has a valid water right to the water it diverts from the Strawberry Creek drainage.”

The company, however, has said it holds valid water rights that have been in continuous use since the late 1800s. Nestle has also insisted its bottling operation isn't causing any harm to the environment.

Late last year, retired Forest Service biologist Steve Loe began writing to the Forest Service to express concern about Nestle’s use of water during the drought and to call for a review of the permit.

Loe, who is a member of the three environmental groups, said he believes it’s a shame they had to take the Forest Service to court, but that it was necessary.

“The public trust is not being upheld by the Forest Service. They’re not taking care of those public lands,” Loe said. “I want to see them stop taking any water until the groundwater starts to recover from the drought, and that they only start taking water when there’s a new permit that protects the national forest.”

The controversy parallels similar debates over bottled water that have flared elsewhere in California and the West during the drought.

In May, Starbucks announced it would stop producing the bottled water brand Ethos Water in California due to the drought and would move the operation to Pennsylvania.

In August, a group of Mount Shasta residents and activists sued in an attempt to block Crystal Geyser Water Company from starting up a bottling plant that would use groundwater to produce sparkling mineral water, tea and juice drinks.

In Oregon, activists have been pushing for a local ballot measure aimed at preventing Nestle from building a plant in the town of Cascade Locks where the company would bottle spring water.

Ian James can be reached by email at ian.james@desertsun.com and on Twitter at @TDSIanJames.