Ian James

The (Palm Springs, Calif.) Desert Sun

PALM SPRINGS, Calif. — Nestle is objecting to the U.S. Forest Service’s terms for issuing it a new permit to continue piping water out of a national forest, saying the agency is overstepping its authority and infringing on the company’s water rights.

Nestle Waters North America detailed its concerns publicly for the first time in a 79-page document submitted to the Forest Service. The company, the largest producer of bottled water in the country, has long drawn water from the San Bernardino National Forest to produce Arrowhead Mountain Spring Water.

The agency in March released its proposal for granting the company a new permit to operate its wells and pipelines in the mountains near San Bernardino for five years. The Forest Service took up the issue after an investigation last year by The Desert Sun revealed that the agency has allowed Nestle to keep using water from the national forest under a permit that lists 1988 as the expiration date.

Nestle Waters said in a statement Friday that it’s concerned “the action proposed by the Forest Service would disrupt established water rights and the long-standing legal process of regulating water use in the State of California.”

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“The proposals currently being suggested by the Forest Service would create a situation in which the federal government overrides more than a century of California law,” the company said. “This would have potentially far-reaching consequences for businesses, agencies, individuals and other water rights holders throughout the state.”

Nestle piped 36 million gallons of water from the national forest last year to produce bottled water. That has sparked an emotional debate during the drought, with opponents arguing that taking water harms the environment and wildlife along Strawberry Creek — and that the impacts on the ecosystem need to be scientifically assessed.

Three environmental groups sued the Forest Service in October in an attempt to shut down the 4.5-mile pipeline that Nestle uses to collect water. Opponents also submitted a petition that they said was signed by more than 280,000 people demanding the agency carry out a “thorough and unbiased” environmental review.

Water from Arrowhead Springs was first bottled for sale more than a century ago. It’s named after the famed arrowhead-shaped natural rock formation on a mountainside north of San Bernardino and the springs near it — both hot and cold. The hot springs were once the central attraction of a glamorous resort, which closed in the late 1950s and now stands vacant at the base of the San Bernardino Mountains.

The company’s water pipelines and horizontal wells on the mountainside have been authorized under various permits since 1929. Forest Service officials have said Nestle’s 1978 permit, which was issued to predecessor Arrowhead Puritas Waters Inc., remains in effect until they decide on the renewal application.

Nestle raised its “legal concerns” in a document submitted to the Forest Service on May 2. It released the document Friday.

Nestle took issue with a proposed management plan that would require it to modify its operations if monitoring showed the extraction of water was affecting the flow of the creek. The company said that plan, as it’s now proposed, “exceeds the Forest Service’s authority.”

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The agency’s proposal “disregards the state laws that administer water rights both on and off federal land,” Nestle said in the document. It said that would “create a problematic precedent nationwide.”

Nestle said it owns rights to collect spring water from Arrowhead Springs, and those rights are “among the most senior water rights” in California.

The company said its ownership of spring water in Strawberry Canyon “can be traced to a possessory claim to the waters” recorded in 1865 by David Noble Smith — who first built a simple “infirmary” hotel where people eased their ailments at the hot springs. Nestle also pointed to a subsequent U.S. patent obtained by Smith and recorded in 1882. It said the water rights were upheld in court in 1931 and have not been legally challenged since.

Nestle said the Forest Service’s proposal is a “substantial departure” from the company’s previous 10-year permits, and from its renewal request. The Forest Service has not been following its own regulations, Nestle said, arguing that under its proposal the agency would regulate the company’s “water rights by controlling its water collection.”

The Forest Service has received hundreds of letters about its proposal, including a few from the bottled water industry. The International Bottled Water Association and Nestle competitor CG Roxane LLC, which sells Crystal Geyser Alpine Spring Water, have raised similar criticisms.

Many of the people who sent emails and letters voiced opposition to letting the company take water from public land, especially given the longstanding lack of independent studies assessing the impacts on the environment.

Bill Gates of Palm Desert called it “downright insane” for Nestle to be allowed to reap big profits from the public’s water supply while homeowners face stiff watering restrictions and are letting their yards go brown.

Some of the people who object to the bottling operation say it’s outrageous the Forest Service doesn’t collect fees for the water itself. The agency has been charging Nestle an annual permit fee of $524 per year.

Under that longstanding arrangement, the company collects water from its pipeline in a roadside tank and transports the water in tanker trucks to a plant in Ontario, one of five Nestle bottling plants in California.

In some of the 568 letters that have been posted so far on a Forest Service website, critics question whether the company actually holds valid water rights. Greg Ballmer, president of the Tri-County Conservation League, said an initial review of historical documents in a local archive “has failed to corroborate the validity of Nestlé’s claim to the water.” He urged the Forest Service to investigate.

Stiv Wilson, campaign director for the Story of Stuff Project, one of the three groups suing the Forest Service, said in a letter that while Nestle claims water rights, “public records show that the Forest Service has not done its due diligence with regard to determining whether Nestle owns a valid water right in the first place.”

The proposed permit would allow Nestle to keep using two water collection tunnels, 10 horizontal wells, water pipelines and other infrastructure in the national forest.

In a letter on behalf of California’s State Water Resources Control Board, Senior Water Resource Control Engineer Victor Vasquez offered assistance to the Forest Service and said the “basis of right” hasn’t been clearly defined in the federal agency’s proposal. He said the national forest should require the company to “identify its basis of right, and to what extent the water being diverted is percolating groundwater, surface water subject to appropriation, or developed spring water” for each of the locations where water is collected.

Nestle noted that the state is in charge of administering water rights, and said its rights aren’t “subject to Forest Service discretion or control.”

If the Forest Service imposes controls that infringe upon those rights, the company said, “all parties with state-based water rights will be threatened, the hierarchy of senior water rights undermined, and long-term economic expectations thrown into doubt.”

The company made clear it has legal options, saying the current proposal could hinder its ability to collect water and entitle it to seek “just compensation.”

As an alternative, Nestle Waters proposed voluntary measures. The company said its voluntary management plan would include rigorous monitoring and its scientists would “continually address the environmental conditions around the spring sites and respond appropriately to any changes.”

The company said it hopes the government will reissue the permit in line with its comments.

John Miller, a public affairs officer with the Forest Service in San Bernardino, said it would be premature to respond.

“The Forest Service has received quite a bit of input,” Miller said in an email, “and our next step is to organize and begin evaluating the materials submitted.”

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