''We will pursue all legal options...' Nestlé Waters/ BlueTriton Brands ups ante in California spring water spat
Water rights complaints against Nestlé Waters North America began in April 2015 with an online petition urging California regulators to stop the multinational company from extracting the state's natural water resources without a valid basis of right.
The allegations against Nestlé Waters North America -- which now operates under the new corporate name, BlueTriton Brands, after selling to One Rock Capital Partners in partnership with Metropoulos & Co. for $4.3bn late last month -- included diversion of water without a valid basis of right, unreasonable use of water, injury to public trust resources, and incorrect or missing reporting.
All complaints were regarding Nestlé’s diversion of water from springs at the headwaters of Strawberry Creek in the San Bernardino National Forest (SBNF) for bottling under the Arrowhead label.
Investigation findings and Cease & Desist
SWRCB's investigation report and Cease & Desist order, which was addressed to Nestlé Waters North America's natural resources manager, concluded that the company may have a right to extract up to 7.26 acre feet of water annually, (down from an initial estimate of 26 acre feet in its preliminary report of investigation released in December 2017).
In 2020, Nestlé reported that it removed 180 acre feet, or roughly 58 million gallons, of water.
According to the SWRCB, over the period from 1947 to 2015, Nestlé’s reported extractions from the springs in the SBNF have averaged 192 acre feet, or 62.6 million gallons, per year. Over the three years since the Water Board’s initial Report of Investigation was released in December 2017, Nestle has removed 532 acre feet of water from the forest, 25 times as much as the Water Board now says they may have a right to.
Under Directive 1 of the order, it states that Nestlé must immediately cease all unauthorized diversions of water within the State Water Board’s permitting authority until demonstrating, to the satisfaction of the Deputy Director, a valid basis of right. In no less than 180 days after issuance of the order, the company must submit a report with evidence acceptable demonstrating implementation of Directive 1 of this Order.
BlueTriton Brands: State 'errs with respect to several critical hydrological and legal conclusions'
In a statement on its website, BlueTriton said it was "disappointed with the recommendation by the State Water Resources Control Board," and claimed that the staff report and draft cease-and-desist order "errs with respect to several critical hydrological and legal conclusions."
It added: "They are contrary to California water rights law and a departure from long-standing SWRCB practice and precedent. It is our view that they have not fairly considered the extensive information and data we have provided to them. As such, BlueTriton Brands will pursue all legal options available to correct the SWRCB staff’s misinterpretation of established California water law.
"Following the conclusion of the appeal process, we will comply with any final determination concerning a cease-and-desist order. In the meantime, we will continue to cooperate with the Board and staff."
BlueTriton Brands will 'pursue all legal options'
Elsewhere on its website, the company says it has never collected more spring water than is naturally available and has responsibly managed its water extraction in the State of California.
"Even though spring water is a renewable resource – its use needs to be managed responsibly. Arrowhead Brand Mountain Spring Water has been sustainably sourced and bottled from the springs in Strawberry Canyon, in what is now the San Bernardino National Forest, for more than 124 years. Our team of engineers, hydrologists, biologists, and geologists consistently monitors and cares for the springs and local environment."
The company further added that all of NWNA’s California factories including Ontario, Sacramento, Livermore, Cabazon, and Los Angeles have been certified under the Alliance for Watership Steward (AWS) Standard in the US.
"We have provided four reports [the latest of which was in 2019] to the SWRCB that clearly establish that Nestlé Waters has not made any unauthorized water withdrawals," said the company, which has 20 days to respond to the cease and desist order and request a hearing.
