The Sordid Tale of Bottled Water In California

By Richard Freeman

Before you purchase bottled water, have you ever stopped and asked yourself where did that water come from, where was it bottled, and if it is safe to drink? Did you know that bottled water is largely unregulated? Your tap water is more regulated than bottled water and most of the bottled water you consume is actually tap water with the other source being spring water. Bottled water is considered packaged food, hence in California, it is regulated by the Dept of Public Health (Food & Drugs) and Federally by the Food & Drug Administration (FDA). Although the FDA has similar quality standards as the EPA for potable water, its testing requirements are far less strict. The FDA protects consumers of bottled water through the Federal Food, Drug, and Cosmetic Act (FD&C Act), which makes manufacturers responsible for producing safe, wholesome, and truthfully labeled food products.

Despite these regulations, Crystal Geyser and Nestlé have come under scrutiny, and in the case of Crystal Geyser and its contractors – Crystal Geyser plead guilty in 2020 to two Federal Felony counts of illegally storing and transporting arsenic-laced wastewater. They were fined $5 million, while the contractors who did the hauling were fined $375,000 each after pleading guilty.

Crystal Geyser gets their water from natural sources that contain naturally occurring arsenic. To reduce the concentration of arsenic for consumption, the company uses sand filters. Through the regeneration process, the sand filters release arsenic into a hydroxide and water solution.

Currently being considered by the State Water Control Resources Board is the appeal of its cease-and-desist order issued to Blue Triton Brands (BTB) – the new owner of several plastic-bottled water brands, most notably Arrowhead – that it stop withdrawing water from the San Bernardino National Forest. The former owner was Nestlé Waters North America, whose parent company – based in Switzerland – is the world’s largest food processor.

The US Forest Service is responsible for issuing the permit that has enabled (first Nestlé and now BTB) to extract and transport water from the top of the Strawberry Canyon area of the San Bernardino National Forest to their collection and distribution site in the foothills. BTB does not pay for the water but they must pay for an annual special use permit (currently $2100) issued by the USFS for the use, access, and impacts of the extraction equipment needed.  Prior to the current (but temporary) permit which was issued in 2018 for 3 years, Nestlé had been operating on an expired permit since 1988.  Since that permit was never examined or reviewed after its expiration, it was automatically honored when the original annual fee was paid without any review or concern for the growing impacts of an increasing extraction on declining Creek flow during several drought cycles. The siphoning of water from Strawberry Canyon has continued to this present day. Complicating the matter is that current and former extractors claim water rights dating back to 1865. 

Strawberry Creek, San Bernardino Forest – Photo: CA State Water Resources Control Board

In a nine-page letter from the State Resources Control Board to Nestle, the Division of Water Rights staff summarized:

1. Nestlé’s claim to a pre-1914 water right that originates from an 1865 possessory claim by David Noble Smith is not valid because the possessory claim only established a riparian right to water.
2. Nestlé may claim an appropriation of up to 7.26 acre-feet annually (AFA) under a pre-1914 basis of right, based on a 1909 contract to appropriate up to 7.26 AFA for delivery to a company with bottling facilities in Los Angeles.
3. Nestlé likely has an appropriative groundwater claim to an unknown amount of percolating groundwater from Boreholes 7, 7A, 7B, 7C, 10, 11, and 12 that would not have flowed in a natural surface channel elsewhere in the watershed.
4. Nestle’s diversions and use of water greater than 7.26 AFA during a calendar year consisting of the combined diversions from Spring Tunnels 2, 3, and 7 and Boreholes 1, 1A, 8, 7, 7A, 7B, and 7C that are within the permitting authority of the State Water Board are unauthorized diversions.
5. While Nestlé may be able to claim a valid basis for the 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.
6. Nestlé cited the stipulated judgment in Del Rosa Mutual Water Company v. D.J. Carpenter, et al., No. 31798, San Bernardino County
7. Superior Court, October 31, 1931 (Del Rosa Judgment), as a basis of right…” the Board was not a party to the Del Rosa Judgment, and while judgments warrant consideration, they only bind those who were parties.”
8. Nestlé is not precluded from applying for a water rights permit for water under the right recognized in the Del Rosa Judgment.
   The US Forest Service issued a new SUP to Nestlé on June 27, 2018…The SUP requires studies, monitoring, and adaptive management measures that will characterize and mitigate the impact of Nestlé’s diversions on public trust resources in Strawberry Canyon. The SUP has a five-year term, with an initial permit term of three years and discretionary annual permits for two additional years.
9. There is insufficient information to determine if Nestlé’s authorized diversions cause injuries to public trust resources that outweigh the beneficial use.

As BTB does not pay for the water it extracts – an estimated 25,000,000-35,000,000 gallons per year they’re making a profit of approximately three-thousand percent (3,000%) at the retail level. In 2018 NestléWater posted sales of $1.8 Billion, and 2019 – half-year sales of $6.2 Billion. The Sierra Club San Bernardino Mountains Group, which has been active in this campaign, is still waiting for the water rights determination to be made by the State Water Resources Control Board. “As for the Forest Service’s 5-year review of potential impacts of water extractions on the stream – staffing changes, shortages, and other exigent circumstances have shifted some of the focus on this issue, but we are still expecting to see a report analysis that would demonstrate harm, especially during drought low-flows.   When the temporary BTB permit study is released, we fully anticipate advocating for either outright denial of extractions (especially at the headwaters of the Creek) or at least modifications to the permitting that will be sensitive to its impacts,” says Chair Steve Farrell.

The State Water Resources Control Board has yet to announce the result of BTB’s appeal, so while we wait, invest in a filter and use tap water if you can. Keep the water flowing on Strawberry Creek.

To get involved or to learn more about the BTB/Nestlé issues and concerns, contact: StevenFarrell@sangorgonio.sierraclub.org

Further reading: The plastic water bottle industry is booming. Here’s why that’s a huge problem by Rachel Ramirez, CNN

Richard is a member of the SF Bay Chapter but follows the Angeles Chapter Water Committee. He can be reached at rfree@sonic.net