Hundreds of water permits expired in national forests

The permit that the bottled water company Nestle is using to pipe water out of a national forest lists an expiration date of 1988, and it's just one of hundreds of permits that the U.S. Forest Service has allowed to fall out-of-date in California.

In national forests across the state, many other pipelines are also siphoning off water from wells and springs under expired permits. The pipelines run to the tanks of water districts, as well as to cabins, neighborhoods, and properties such as cemeteries, lodges and ranches.

Because the permits haven't been formally renewed in years, the Forest Service largely hasn't studied how the taking of that water from public lands may be affecting the forests, streams and wildlife.

In an investigation into the use of water from California's national forests, The Desert Sun obtained records for 1,108 water-related permits. Of those, 616 permits are listed as being past their expiration dates — 56 percent of the total.

The permit holders range from individual homeowners to a wealthy and politically connected farmer who is one of California's biggest potato growers.

While many permits are for pipelines, others were issued for wells, springs, dams, water tanks, and irrigation ditches, among other things. On average, the records show the permits have been expired for 12 years.

The backlog has accumulated throughout the agency, in places from the San Bernardino National Forest to the Sierra National Forest. And with the drought leaving much less water in streams to sustain wildlife, some former Forest Service employees say it's urgent that the agency take a hard look at permits issued years or decades ago.

"The permits all need to be reevaluated," said Steve Loe, a retired Forest Service biologist. "These permits were issued in a wetter time. We need to look at them quickly and we need to look at them on a priority basis."

Loe has been demanding that the agency order a halt to Nestle's extraction of water from the San Bernardino National Forest until the ecological impacts can be studied. He's worried about effects on animals that rely on the creeks, such as frogs, salamanders and fish.

Nestle draws water from wells that tap into springs in Strawberry Canyon north of San Bernardino. The water flows across the national forest in a pipeline and is bottled and sold as Arrowhead 100% Mountain Spring Water.

Nestle Waters North America, a subsidiary of Switzerland-based Nestle SA, has insisted that its bottling of water from the forest isn't causing any harm to streams or wildlife. The company has said it will work with Forest Service toward the reissuance of its permit.

During the past week, company spokeswoman Jane Lazgin said that Nestle's legal group informed her "that under the Administrative Procedure Act, the license has not expired."

She cited a section of the law that says when a licensee "has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license … does not expire until the application has been finally determined by the agency."

Forest Service officials have described Nestle's permit as being expired. It was issued in 1978 to Nestle predecessor Arrowhead Puritas Waters, Inc., for the purpose of maintaining water pipelines, wells and other infrastructure.

A 1981 amendment attached to the permit says the document "shall… expire and become void on 8/2/88." The document also says a new permit may be granted provided the holder notifies the supervisor of the national forest "not less than 1 year prior to said date that such new permit is desired."

Forest Service officials recently said they are taking up the issue of Nestle's expired permit and plan to carry out an environmental analysis. They announced those plans after Loe and others raised concerns in emails and letters, and after The Desert Sun inquired about Nestle's permit.

"Since this issue was raised and I became aware of how long that permit has been expired, I have made it a priority to work on this reissuance project," San Bernardino National Forest Supervisor Jody Noiron said in a telephone interview. Given the drought, she said, her staff is also "looking to see if it would be appropriate to impose any kind of interim conditions until we get through the renewal process."

She didn't elaborate on what those conditions might include. Noiron also said she will make it a priority for her staff to examine an expired permit that the Cucamonga Valley Water District uses to draw water from nearby Deer Canyon. The water agency has a contract with Nestle and has been selling water to the company for bottling.

As for why Nestle's permit hasn't been renewed since 1988, Forest Service officials have cited tight budgets and limited staff among the reasons. Here and elsewhere, they've been struggling with a backlog for years.

Loe experienced those pressures firsthand when he worked for the San Bernardino National Forest. But he said it's now become critical that the agency reexamine permits related to water.

"There's nothing more important than water, especially with the drought," Loe said. "In places where they're taking out millions and millions of gallons, you'd better reevaluate that and see if it makes sense in today's world."

National forests cover about 21 million acres in California, about one-fifth of the state's total land area. A large portion of the state's rain and snow comes down on these public lands, and some of that water has long been piped out of the forests.

Some of the water rights go back more than a century and predate the establishment of the Forest Service in 1905.

The fact that hundreds of water-related permits have expired leaves those uses of water largely unexamined at a time when the drought is heightening concerns about water supplies statewide. While Californians in cities are being told to cut back, the lack of regular reviews by the Forest Service appears to have left little direct oversight of how the extraction of water from national forests may be affecting streams and habitats.

Recently, the Forest Service has announced some steps to shift its priorities in California in response to the drought. The agency's regional office in Vallejo, which oversees all 18 national forests in the state, said this month that it plans to work with state officials to determine "how best to manage the impacts of the current drought on water uses."

That comes in response to Gov. Jerry Brown's order for mandatory statewide cutbacks in water use.

John Heil, a Forest Service spokesman, said the agency will also look at its water-related "special use" permits. He said in an email that the regional office has created "a Drought Committee which includes review of Forest Service practices that involve the use of water."

That's a significant change from the past, when current and former officials say water permits often haven't been a top priority.

Gene Zimmerman, who headed the San Bernardino National Forest as forest supervisor from 1991 to 2005, said the Nestle permit wasn't renewed during his tenure for various reasons, among them a lack of sufficient funding and staff.

Zimmerman, who is now retired, said he has done occasional paid consulting work for Nestle during the past four or five years. He isn't the only former government official who has taken on a role with Nestle. In fact, former U.S. Agriculture Secretary Ann Veneman, who oversaw the Forest Service from 2001 to 2005, now sits on Nestle's board of directors.

Zimmerman said his work for Nestle has been limited to several days per year, and has included studying how the creation of the new San Gabriel Mountains National Monument might affect the company. If Nestle asks for his help in the process of renewing the Forest Service permit, Zimmerman said he expects his role would be to make sure "they were looking at things fairly, appropriately."

"I don't see any conflict," Zimmerman said in a telephone interview. "A lot of time has gone by. A lot of the players are different in the Forest Service, and there's a huge turnover of staff."

As for Nestle, he said, "I think they probably asked me to do some work for them because they felt I took a professional approach and approached my work with integrity, be it Forest Service work or independent work after the Forest Service."

Nestle and the Forest Service have had a cooperative relationship over the years. In 2003, the Old Fire swept through the area and destroyed portions of Nestle's pipeline. Later, deadly floods and mudslides thundered down from the mountains. As Nestle workers rebuilt the pipeline on the mountainside, Forest Service officials oversaw the work. But the agency didn't require a new permit at the time.

Over the years, Zimmerman recalled, Arrowhead representatives had told him they would like to have the permit reissued. He said they were "uncomfortable operating without a permit as well. They've told me that. They told me that several times."

"They feel like they're kind of hanging out not having a permit, and we just said we couldn't get to it with our workload and our budget and our staff that we had, especially when they were being what all of us agreed were pretty darn good stewards of the land," Zimmerman said. "The whole process of reauthorizing a permit can be pretty rigorous, and we just didn't have the money or the budget or the staff to do that."

Zimmerman said the priorities often turned out to be permits for projects such as adding a railroad line or installing power lines or telecommunication lines. He said he largely relied on his staff to prioritize the work, and "there was never an issue that was raised with Arrowhead that got raised to my level."

Earlier this year, as Loe and others publicly raised questions about Nestle's long-expired permit, the company asked Zimmerman to appear in a pair of videos and talk about his experiences with the company. Standing next to Strawberry Creek, Zimmerman said the company has been a "great partner." He dipped the toe of his shoe into the creek and said: "As you can see, it's flowing water, even in this severe drought. … This canyon looks good to me."

It's one of 11 spring sites that Nestle has available in California, and the only one located in a national forest.

Nestle is the world's largest food and beverage company, and also the biggest producer of bottled water in the United States. It has been seeking to expand and obtain new water sources to meet rising demand. In some places, the company has run into fierce opposition.

In 2009, for instance, Nestle scrapped plans to build a bottling plant in the town of McCloud, at the base of Mount Shasta, after a legal fight over the local government's agreement to sell the company water. The old lumber mill site that Nestle had purchased came equipped with a pipeline crossing Shasta-Trinity National Forest, and the company had been looking into whether that pipe could be used. But it never ended up carrying any water for bottling, and the company sold the property.

Nestle is now seeking a new source of spring water in Oregon: Oxbow Springs. Under a proposed water rights trade between the city of Cascade Locks and the Oregon Department of Fish and Wildlife, the state would trade some of the water from the springs that it now uses to supply a fish hatchery, and Nestle would obtain spring water. Nine Oregon legislators, however, are urging Gov. Kate Brown to block the transfer, opposing the idea of trading away the public's spring water.

In Southern California, water from Arrowhead Springs has been tapped and sold for more than a century.

The staff of the San Bernardino National Forest, Heil said, "is currently working with the Nestle Corporation to evaluate its expired permit and the environmental impacts of the use."

Heil said the company has requested that its permit be renewed and has been providing information from its records to aid in the process. He said Forest Service officials have started an independent environmental survey.

"We have worked cooperatively with the Forest Service for many years and have maintained payment of the annual permit fee, after having requested the re-issuance of the permit for transmission and operation of the pipeline," Lazgin said. "The Forest Service has given us assurance that our existing pipeline permit remains in effect."

The Forest Service says that while a renewal of a permit is pending, the permit remains in effect provided that the holder meets the terms.

"In terms of Nestle," Noiron said, "they have continued to comply over the years with the terms and conditions that are in that expired permit, while paying their fees."

The national forest has continued to collect a permit fee of $524 from Nestle each year, and the water is continuing to flow through the pipeline.

The Forest Service deals with a long list of permits in addition to those that involve water. There are also permits for cabins, parking lots, mailboxes, power lines, mailboxes, fiber optic cables, and other categories.

Out of about 15,000 permits in the state, approximately 4,500 permits are expired, said Randy Moore, the Forest Service's regional forester in California. Every year, the Forest Service also receives about 2,000 new requests.

"This is a significant impact on the work that we do," Moore said in a telephone interview.

The San Bernardino National Forest has a total of 1,600, including about 300 that are expired, Noiron said. She said about 120 of the expired permits relate to water.

"The workload is huge," Noiron said. "And so when it comes to dealing with the expired permits, the truth of the matter is that we deal with them as we can."

In a 2011 audit report, the U.S. Department of Agriculture Office of Inspector General concluded that the Forest Service "lacks the resources it needs to properly manage" the permits. Among its recommendations, the office said the Forest Service should ensure enough staff to manage the program and carry out inspections and reviews.

In an effort to reduce the backlog of expired permits, the agency's regional office has created a new position for a data coordinator to track the status of permits, and has begun additional training.

Gary Earney, a retired Forest Service employee who used to administer permits, said he suspects the backlog will remain because there simply aren't enough people to do the work.

"It's an outrage," Earney said. "Until we solve the basic budget problem, I don't see any change happening."

Still, he said, it's crucial that the agency examine permits related to water in order to make sure there are adequate water supplies for the forests and the wildlife.

"There needs to be a professional opinion made about which expired water use permits have a potential to damage the forest environment, and those permits need to be more closely looked at," Earney said.

In reviewing the list of more than 600 expired Forest Service permits related to water in the state, The Desert Sun found that 420 of those permits were issued for water pipelines. The Forest Service said sometimes water is extracted from private land and the pipeline goes across public land. But in most cases, the water is drawn from wells or other water sources on national forests.

Among other types of expired permits, there were 72 for wells, springs or windmills, 15 for irrigation ditches, and 11 for dams or reservoirs.

Some environmental groups have begun calling for the Forest Service to enforce its expired permits and make sure no more water is drawn from public lands until new permits are put in place.

"They need to be able to safeguard these waters," said Ileene Anderson, a senior scientist with the Center for Biological Diversity. "It's appalling that they have expired water permits where the water is continuing to be extracted, first and foremost, but certainly now with the drought, this should be the top priority to be reevaluating these permits."

Larry Minor farms 3,000 acres of potatoes in Southern California. His family business, Agri-Empire, was started by his father in 1943. It's now one of the biggest potato growers in the state, with farms in Riverside, San Diego and Imperial counties.

During a visit to his ranch in Oak Grove, Minor stood looking out over a pond, telling stories about farming as well as his days as a drag racing champion.

He laughed when asked about his 2011 conviction on charges of making illegal campaign contributions through family members and employees to politicians Mary Bono and Jeff Stone. He pleaded guilty, paid a fine, and got three years of probation.

"I did nothing wrong," he said with a smile. "I've never stole a dime from anyone. I only got in trouble for giving away my own money."

Turning to the history of the farm, he explained that he bought it in the early 1980s, and that he chose it in part because plentiful water flowed out of a canyon year-round. That water at first was enough to irrigate potatoes. When it grew drier, he began pumping water from wells.

The farm also has another water source: a steel pipeline that runs three miles from Kohler Springs in the Cleveland National Forest to Minor's pond. The pipeline was laid in the early 1900s, he said, and in wet years it can send water pouring out of the pipe and into the pond at a rate of 50 gallons per minute or more.

"It hasn't run in two years," he said. "The spring is dry."

He said he normally uses the spring water for his cattle to drink. With the pipeline dry, he has been pumping water from a well into the pond instead.

When told that his permit is expired, Minor said he was surprised. Then, he said he would look into getting the permit renewed.

"If the spring is flowing, it saves me pumping a small well in here to water the livestock. It would just save a little bit of money that way," Minor said. Plus, he added, "I bought the land for the water. I think the water needs to stay with the land."

Managers of two small water districts and the owner of a campground had similar responses when contacted by phone about permits that are listed as expired. They said they've continued paying the fees as usual and had thought the permits were up-to-date.

Nestle uses water from multiple springs for its Arrowhead brand bottled water. In the San Bernardino National Forest, the company has since 2005 been buying some of that water from the Cucamonga Valley Water District, which holds the rights to water from Deer Canyon Springs.

The district's permit for maintaining the pipes and other infrastructure says the document "shall expire and become void" in 1994. It also says the purpose is to transport water "for domestic purposes."

Earney said that when he worked for the Forest Service, he disagreed with the water district's interpretation that it was OK to sell the water.

"That's commercial consumption to me, not domestic," Earney said, adding that he didn't have time to take on the issue in the mid-2000s due to a heavy workload of other permits he had to deal with.

Martin Zvirbulis, general manager and CEO of the Cucamonga Valley Water District, defended the agreement with Nestle, saying it has been beneficial for customers.

"The facilities and the springs and the water belong to us, so it's for public use," Zvirbulis said. "It's for the public benefit."

"This is a good deal for our ratepayers," Zvirbulis said, adding that Nestle has been "an incredible partner."

Zvirbulis said the company has provided support for conservation programs as well as water infrastructure.

It's not clear how much Nestle is paying for the water. A copy of the agreement that the water district provided to The Desert Sun was heavily redacted to remove references to the price paid and other details. The water district cited an exemption in the state's public records law for "trade secrets."

The Cucamonga Valley Water District, which supplies water to more than 190,000 customers, says the earnings from Nestle have allowed it to keep customers' rates lower than they would otherwise be.

Zvirbulis said the water district has kept its permit active by paying the annual fee, and has maintained a good relationship with the Forest Service.

"Our fees are currently paid up through 2018, and so historically the Forest Service has always indicated to us that that was sufficient to keep the permit in good standing," Zvirbulis said. "Our understanding has always been as long as you pay the fees, it's all good and we'll get around to it when we have the opportunity to get around to it."

Lynne Stephenson contributed to this report.

Ian James can be reached at ian.james@desertsun.com and on Twitter at @TDSIanJames.