CALIFORNIA – The California State Water Resources Control Board voted to issue a cease and desist order, in a September 19 hearing, to Arrowhead water bottling company Blue Triton Brands (BTB) for diverting water from the San Bernardino National Forest Strawberry Creek.
Local activists and nonprofits have said during the years-long investigation that BTB, and its predecessor Nestle, have severely reduced water in spring-fed Strawberry Creek, which forest wildlife and plants need to survive. They asked for any new permits to be denied calling the water bottling operation commercial exploitation.
BTB says activists are now asking to expand the board’s authority over groundwater in an unprecedented and dangerous manner.
According to the water code the State Water Resources Control Board has jurisdiction over surface waters flowing in natural channels and groundwater in subterranean streams flowing in known and definite channels.
Activists contend that BTB intercepts water using tunnels and boreholes that would eventually rise to the surface.
The board agreed.
“If we were to allow folks to evade that authority simply by drilling a borehole or tunnel to intercept a spring or surface water immediately before it surfaces – I think, that’s a calling for increased attempts to evade the authority and water rights system we have at the state,” said State Water Resources Control Board Member Laurel Firestone.
The Association of California Water Agencies (ACWA) disagreed with this interpretation. They, along with BTB, say that the disputed water is percolating groundwater which the board does not have jurisdiction over.
“The proposed order relies on hypothetical situations of where the water would or could be – not in reality where it is and therefore did not satisfy that burden of proof under the applicable four part test,” said ACWA Attorney Alison Toivola.
Toivola says the order raises broad and expansive risks and would create significant uncertainty for its public agency members responsible for 90 percent of the water delivered to cities, farms and businesses in California.
State Water Resources Control Board Chair E. Joaquin Esquivel acknowledged that the decision is setting some precedent. The board voted unanimously to adopt the cease and desist order.
Local activists and nonprofits initiated the investigation in 2015 after it was discovered that predecessor Nestle was using an expired Special Use Permit to divert water.
The Forest Service issued a new three-year permit in 2018, however, the State Water Control Board said while Nestlé may be able to claim a valid basis of right to some water in Strawberry Canyon, a significant portion of the water currently diverted by Nestlé appears to be diverted without a valid basis of right.
Nestle sold its ownership of Arrowhead Water to BTB in 2021 for $4.3 billion.
BTB contends that it has valid water rights that predate the establishment of the national forest in 1893. They and their predecessors’ right to divert water and ship it for bottling was also upheld in the 1931 Del Rosa court decision.
Challenge to the order
The adopted cease and desist order gives the company 20 days to request a hearing and 90 days to submit a compliance plan.
“We are disappointed by this action, which is based on inaccurate and outdated information about our operations and water rights in California,” said BTB President and CEO Yannick Leouffre in a statement. “We will vigorously defend our rights to continue to use these springs, which we have done for over 122 years.”
The company also alleged during the hearing that the board did not follow due process throughout the investigation.
To view the California State Water Board meeting visit https://www.youtube.com/live/Cb6A0tiR7nU?si=13T_GmFRPFES3A88&t=2874