A Proposed Limit on Water Bottler’s Claim in the San Bernardino National Forest
by Ileene Anderson
California State Water Board May Soon Act to Limit BlueTriton Brands Siphoning of Water from Springs in the Strawberry Creek Watershed in the San Bernardino National Forest for Bottling
Water is essential to life. In California, where overtaxed water resources must meet a variety of societal and biological needs and water law is particularly complex, ensuring that scarce water resources are protected and that only authorized diversions are made is difficult.
Headwater Spring, December 4, 2021 - Barely a trickle.
Photo: Hugh Bialecki
Water rights in California are infinitely complicated with different legal structures for surface water, groundwater, and riparian rights. Anyone who has followed the never-ending battles among farmers, cities, and conservationists over water that flows through the Sacramento-San Joaquin River Delta or water levels in Mono Lake knows that there are rarely simple answers when water rights are at stake. Yet as complex as it may be, the basic legal principle enshrined in the state constitution is clear: all water in the state is held in trust for the people of California. Too bad the bottled water industry doesn’t share that view.
Nestle is the country’s biggest seller of packaged water in disposable plastic bottles. It bought the Arrowhead Mountain Spring Water label and its water claims in the San Bernardino National Forest in 1992 when it acquired Perrier, which had bought the Arrowhead brand from another food conglomerate. In 2021, Nestle sold its interest in Arrowhead to BlueTriton Brands.
In April 2021, State Water Resources Control Board staff, in response to multiple complaints, issued a proposed cease-and-desist order which found that Nestle/BlueTriton Brands did not have adequate water rights to be diverting all of the spring water that it had been taking in Strawberry Canyon. BlueTriton Brands requested a hearing on the draft order in May 2021, sending it to the Administrative Hearings Office of the State Water Resources Control Board. The Administrative Hearings Office’s evidentiary hearings process started in August 2021, and resulted in a revised proposed cease-and-desist order that will be heard by the State Water Resources Control Board this fall.
BlueTriton water pickup area at base of mountain.
Old Waterman Canyon near Arrowhead Hot Springs property.
Photo: Amanda Frye
While it’s true that the Arrowhead brand has taken water from some springs in the area for more than a century, the springs in Strawberry Canyon watershed were not tapped by the company until the 1930’s, and the draft order found that the company never took any steps to lawfully acquire surface water rights to that spring water. The present spring water diversions involve drilling deep into the mountain to capture water before it can ever reach the surface. In response to these findings, the company did an about-face and claimed it is only taking groundwater (not surface water), and that it has a right to take unlimited amounts of groundwater from beneath the national forest. In fact, the Forest Service never considered the question of whether the company could take groundwater under the National Forest (which the U.S. Forest Service has rights to as the overlying owner) because the company had previously claimed it needed only surface water rights.
The Center for Biological Diversity (CBD), the Sierra Club, and other groups have intervened in the Administrative Hearings Office process and have participated through expert testimony, cross-examination of witnesses, and briefing. The Hearing Officer has been thorough and included a public field trip in February 2022 to some of the water diversion sites.
On May 4, 2023, the Hearing Officer issued a draft proposed cease-and-desist order on some of the water that Nestlé /BlueTriton Brands had been diverting. The revised draft order, issued on July 7, 2023, is based on a finding that BlueTriton lacks the necessary water rights. Specifically, the draft proposed order would require that Tunnels 2 and 3, and Boreholes 1, 1A, 7, 7A, 7B, 7C and 8 must only be used to deliver established riparian water rights to the Arrowhead Springs Hotel property which is now owned by the San Manuel Band of Indians. The proposed order also requires monthly reporting on the total daily amounts of diversions at all the facilities. While the revised cease-and-desist order would not require changes at Boreholes 10, 11 and 12 that divert a spring complex further down the watershed, it would require monitoring and reporting of water diversions in that area also.
Spring 7 vault with no water.
Photo: Amanda Frye
The CBD and Sierra Club are supportive of the Hearing Officer’s draft proposed cease-and-desist order because it will allow more water to flow down Strawberry Creek, revitalizing the riparian area, and will begin the process of restoring these public lands. The State Water Resources Control Board will ultimately make a final decision on the cease-and-desist order sometime in the Fall of 2023. BlueTriton Brands may, however, decide to challenge the order in State Court. If they do, we will be there to continue to defend the springs that support Strawberry Creek.
In summary, the siphoning of spring water for bottling comes at a cost, including to fish and wildlife in the forest that rely on the water for their survival. We hope that the water board acts quickly to protect the springs in Strawberry Canyon and that restored flows soon help revive the rare riparian and aquatic habitats along Strawberry Creek.
Ileene Anderson is a senior scientist with the Center for Biological Diversity. She is also the California Deserts Director for the organization and has worked on conservation issues in the California deserts for over 25 years.
Also at Issue: Forest Service Special Use Permits for Pipelines and Boreholes
In 2014, an estimated 28 million gallons were piped away from the San Bernardino National Forest to be bottled and sold under Nestlé’s Arrowhead brand of bottled water even though the permit for the four-mile pipe had expired nearly three decades ago. The Forest Service renewed that permit in 2018 and required specific studies on the impacts of the water use. The Forest Service is now waiting for the water board decision before considering a new permit and undertaking a robust environmental review process.
