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Behind the Lawsuit to Turn off Spigot to Nestle

Three organizations have filed a lawsuit against the Forest Service to stop water withdrawals in the San Bernardino National Forest by Nestle, which uses the water for its Arrowhead bottled water brand.

Written by Tara Lohan Published on Read time Approx. 6 minutes
A still from the movie This Land Is Our Land, by the Story of Stuff Project, shows the water pipeline that diverts water from Strawberry Creek for use in bottled water.Story of Stuff Project

If you’ve heard of the Story of Stuff Project it’s likely because of their viral videos that get people to take a closer look at the consumption of things like material goods, energy and water. But the organization is about to embark on a new challenge: legal action.

In October, the Story of Stuff Project, along with the Courage Campaign and the Center for Biological Diversity, filed a lawsuit against the United States Forest Service. On May 16, the groups will have their day in court.

At issue is Nestle’s pumping of water from Strawberry Creek in the San Bernardino National Forest in Southern California. Last year, after a retired Forest Service biologist came forward expressing concern about the watershed where Nestle is drawing water for its Arrowhead brand bottled water, Ian James at the Desert Sun wrote that Nestle was operating under a permit from the Forest Service that expired decades ago.

It prompted petitions and now legal action calling for the Forest Service to stop allowing Nestle’s water withdrawals.

To find out more about the lawsuit, we spoke with Story of Stuff Project’s executive director, Michael O’Heaney.

A second still from the movie This Land Is Our Land shows the San Bernardino National Forest where Nestle is extracting water for bottling. (Story of Stuff Project)

A second still from the movie This Land Is Our Land shows the San Bernardino National Forest where Nestle is extracting water for bottling. (Story of Stuff Project)

Water Deeply: When did you decide that you would file a lawsuit – that’s a bit out of character for your organization, isn’t it?

Michael O’Heaney: In the spring of 2015 Ian James at the Desert Sun did a series of articles about the expired permit that Nestle was operating under. Very quickly there were a series of organizations who fielded petitions around this issue.

It brought a lot of attention. But as the summer went on, it became clear that the organizations that fielded petitions weren’t necessarily going to push through with additional work or potential solutions to the problem.

As we studied the issue more closely we realized that the permit actually terminated in 1988 and Nestle didn’t have a valid legal right to continue taking water past the end of that permit. We got in touch with an attorney and she told us we had a pretty good case, so we decided to file suit. We felt it was important not just to field petitions and turn people on about the issue, but to search for the most elegant solution.

Water Deeply: Was it a tough decision to decide to sue the Forest Service?

O’Heaney: Truthfully, we were hesitant to do it. The Forest Service is a beleaguered federal agency, they had budgets cut, they are charged with fighting wildfires, which in the West right now is a major problem. So they have a lot on their hands.

At the same time, this was a permit that was expired for far too long and there should have been a review and Nestle was taking more water than anyone else in the forest.

Water Deeply: How has the Forest Service responded?

O’Heaney: The Forest Service ultimately took up the question of this permit. Nestle asked for a new five-year permit and the Forest Service is in the process now of figuring out the scope of the environmental review that they’ll do on that permit application.

They can either do something called a Categorical Exemption where the forest supervisor basically just decides that there won’t be a significant impact on the forest and approves the permit. Or they can do two different levels of environmental review: one more straightforward and shorter term, and the other more in-depth. We are pushing right now for them to do the most in-depth review.

With our partners, we just submitted 280,000 signatures on a petition asking them to do that and to turn off the spigot while that review is ongoing. That review could take anywhere from a year to 18 months.

Last year Nestle took 36 million gallons of water out of that watershed and the Forest Service itself admits that it doesn’t really know what impact that is having on the ecology of the area.

Water Deeply: What are you hoping to achieve?

O’Heaney: Our ultimate goal and what we’ll be arguing later this month down in Riverside in federal court, is that Nestle doesn’t have a valid permit and so the Forest Service can’t just say “We are going to let them keep doing it until we’ve done this review.” The Forest Service doesn’t actually have that legal right. They have an obligation under the law to turn off the spigot on Nestle.

The Forest Service has continuously said that Nestle is still operating under a valid permit because the Forest Service extended it and 28 years later Nestle can continue to take the water. We just don’t believe that’s legally true and we’ve asked the judge to decide on that.

Water Deeply: What concerns you most about the water withdrawals?

O’Heaney: I think the reason stopping them from taking the water is important is how do you do an environmental review to understand the impact of the water take on the ecosystem if you don’t know what the natural ecosystem looks like?

They are taking the water out of Strawberry Creek, diverting it at the top of the creek, so you aren’t seeing what the impact of having that water in the creek would be. In the past two summers that creek has nearly run dry.

We’re asking to let the water get back into the ecosystem so you’ll get a baseline understanding of what the ecosystem is like and then we’ll understand better whether or not this water take is something that can be sustained.

Water Deeply: You used the Freedom of Information Act to request thousands of pages of documents relating to this issue. What surprised you most in your findings?

O’Heaney: It’s the cozy relationship between Nestle and the Forest Service. Ian James has reported on this previously, but the previous forest supervisor, a guy named Gene Zimmerman who was in charge of the forest during the bulk of the years that Nestle’s permit went unlooked at, he went and did consulting work for Nestle afterward. Nestle was the largest funder of his charity and helped him build a community center in San Bernardino.

Water Deeply: What did you learn about Nestle’s actual water right? It is being contested by some, is that correct?

O’Heaney: Nestle says it has this water right, an inherited water right from Arrowhead Mountain Spring Company in the late 1800s, but there are some serious questions about whether or not Nestle has a valid water right.

In the Forest Service permit review, a public comment from a water official from the state of California questions whether or not Nestle has a valid water right. The Forest Service Office of General Counsel in the past has questioned Nestle’s argument about whether it has a valid water right.

The Forest Service has already asked Nestle for an explanation and Nestle has submitted an argument from an attorney as to their water right. We think there are some holes in it. But the Forest Service will have an obligation to test that. Other state officials are interested in this question as well.

Water Deeply: What’s your next course of action, depending on how things go with the lawsuit?

O’Heaney: We’ll continue to push. We’ll push on the permit review process, because even if the judge says the Forest Service has to turn off the spigot on Nestle, Nestle will continue to push for a new permit and we’ll continue to bring public pressure to bear and ensure that the Forest Service knows the public is watching and pushing for the most thorough environmental review, which ultimately we believe will find that this take of water is not incidental to the health of the forest, that it’s actually damaging the flora and fauna and that it should stop.

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