Nestle can keep piping water from national forest, despite permit that is 28 years out of date

A federal judge has ruled that a permit allowing Nestle to pipe water out of the San Bernardino National Forest is valid, despite the fact that the permit listed 1988 as the expiration date and was never renewed.

The decision is a major blow for environmental groups that sued in an effort to stop Nestle from siphoning water out of public lands then sell it back to the public as bottled water.

“We are disappointed – very disappointed – in the ruling,” said Michael O’Heaney, executive director of The Story of Stuff Project, who said his group and others are considering an appeal. “The idea that 28 years in inaction on the Forest Service’s part is considered reasonable, and perfectly fine with the court, is outrageous.”

THE BIG STORY: Nestle is bottling water without scrutiny

The ruling, issued Tuesday by U.S. District Judge Jesus Bernal, states that Nestle's permit remains valid because the company's predecessor reached out to the Forest Service about obtaining a new one and never got a response from the agency.

Instead, the Forest Service just let Nestle keep piping water out of the Strawberry Creek watershed, which is north of San Bernardino in the national forest. Pipes take the water to a roadside holding tank, then it is driven to a bottling plant in Ontario so it can be sold as Arrowhead Mountain Spring Water. Forest Service officials have said Nestle pays an annual permitting fee of $524 for permission to run its pipeline. The company piped an estimated 36 million gallons from the forest in 2015.

The lawsuit, filed in 2015, demanded that the Forest Service halt Nestle’s use of wells and piping in the forest. Plaintiffs, including the Center for Biological Diversity, argued that because the permit had expired years ago, the Forest Service had illegally allowed the company to continue taking water. Environmentalists also worry Strawberry Creek will dry up.

“The court has just confirmed what many Americans fear, massive corporations play by a different set of rules than the rest of us," said Eddie Kurtz, executive director of the Courage Campaign Institute, another plaintiff, in a news release. "Nestlé has been pulling a fast one for nearly 30 years, taking a public resource, depriving plants and animals of life-sustaining water, and selling that water at an obscene profit without the right to do so, but apparently our justice system is OK with that.”

The Forest Service did not respond to the ruling, forwarded all questions to a spokesman at the U.S. Department of Justice who did not respond to a request for comment.

READ MORE: Activists protest Nestle bottling plant outside lawsuit

Nestle hailed Tuesday’s ruling as a victory.

“While Nestle Waters is not a party to the case, we are pleased that today’s ruling confirms the United States Forest Service can continue to move forward with the permit renewal process related to our Arrowhead brand,” the company said in a prepared statement. “With origins in Southern California dating back to the late 1800s, Arrowhead Mountain Spring Water is deeply rooted in the history of California and is enjoyed or relied upon by many Californians.”

Nestle's out-of-date permit was revealed in a Desert Sun investigation in 2015. Documents obtained by the newspaper revealed the Forest Service had discussed conducting a review of Nestle’s permit in the 1990s and early 2000s, but those discussions never led to action.

The issue has sparked an emotional debate during California’s epic drought, with opponents arguing that taking water harms the environment and wildlife along Strawberry Creek, and that the impacts on the ecosystem need to be scientifically assessed.

Although Tuesday’s ruling has dealt a major blow to legal efforts to stop Nestle, O’Heaney was quick to note that the lawsuit was just one way in which Nestle's operation is being challenged.

After years of inaction, the Forest Service is now re-examining Nestle’s permit. The agency has proposed to issue a permit that would allow Nestle to continue operating its wells and water pipelines in the forest for five years, and the permit process is to include environmental studies.

Nestle’s used of water from the forest is also being investigated by the state water board. The company has insisted its rights are “among the most senior water rights” in California, but state officials began investigating after receiving several complaints questioning whether company actually holds valid rights.

“You have this ongoing set of pressure points – the permit review, the water board review and the public interaction with Nestle – which we hope will ultimately convince Nestle to do the right thing and abandon its operation in the forest,” O’Heaney said.

Reporter Ian James contributed to this story.

Investigative Reporter Brett Kelman can be reached at 760 778 4642 or at brett.kelman@desertsun.com. You can follow him on Twitter at @TDSbrettkelman.