Whenever drought has struck in recent years and Californians were ordered, beseeched and shamed into conserving water, many frustrated residents pointed to Nestlé, which continued extracting tens of millions of gallons of springwater every year from the San Bernardino National Forest for its Arrowhead water operation.
But the state Water Resources Control Board put an end to business as usual for the company on Tuesday. In a historic decision, the board upheld a cease and desist order which stemmed from a 2017 investigation by the state’s Division of Water Rights. It’s the final step in a decade-long process and public fight against BlueTriton (formerly Nestlé.)
Since the 1920s, Nestlé has been taking water from springs in the San Bernardino National Forest. Over the decades, the company claimed that water was based on pre-1914 water rights, or senior water rights, which are subject to far less regulation and oversight than newer water rights.
The first red flags on Nestlé’s operation were raised by members of the public.
“Any logical person would think, ‘This just doesn’t make any sense,’” said Amanda Frye, a San Bernardino County resident and one of the people who first started digging into the history of the company. “The records I was finding were like, something is radically wrong.”
Frye spent years digging through records and trying to verify whether Nestlé had the rights it claimed. But she couldn’t find evidence of the rights anywhere.
Together, with more members of the public and stories in the media, Frye and others were able to raise enough red flags to catch the state’s attention which led to the formal investigation and ultimately the cease and desist order.
Nestlé appealed the decision but to no avail since the board’s action on Tuesday solidified the order once and for all.
“This is the end and they will have by November 1 to comply,” said Michael O’Heaney, executive director of nonprofit The Story of Stuff Project, one of the complainants against Nestlé. “This is the board saying, ‘there’s no water rights here. You can’t keep taking this water.’”
At Tuesday’s board meeting, BlueTriton’s attorneys tried to sway board members with claims that the springwater should be classified as groundwater, which would mean the Water Board has no authority over it.
But the arguments did not change the minds of board members.
“When I look at the record, when I look at the facts and the fact patterns here on this particular matter, I’m not moved at this point to define a different conclusion,” said Joaquin Esquivel, chair of the Water Board, at the meeting.
The board voted unanimously to uphold the cease and desist order.
“This enforcement action illustrates the power of public participation,” said Julie Rizzardo, deputy director of the state’s Division of Water Rghts and lead prosecutor, at the meeting. “I have witnessed the profound impact of unauthorized diversions on California’s communities and the ecosystems. And this is the most important case that I’ve worked on in my 25-year career.”
The decision comes after the passage of Senate Bill 389 which further clarifies the board’s power to investigate pre-1914 water rights. That bill is on Gov. Gavin Newsom’s desk.
For some, the board’s decision against Nestlé is a prime example of why such a power is needed.
“They [the Water Board] should be able to trace all these rights,” said Frye. “You can say something, but it doesn’t mean it’s true. And that’s this case.”