A century after beverage corporate giant Nestlé began bottling and selling water in the San Bernardino Mountains as Arrowhead Spring Water, California’s water regulator said the company lacks a valid legal right to the water and must stop taking it under a cease-and-desist order.
The unanimous decision was a culmination of the highest-profile water rights dispute undertaken by the State Water Resources and Control Board. In an era of more frequent and extreme droughts, the board’s decision is a show of force to water users across California who may stand on shaky legal grounds.
“These last few years we’ve been administering water rights for the first time in California history,” said Joaquin Esquivel, chair of the water board. “This is about who gets to accrue benefits of this public good and it has to be rooted in a system that doesn’t just allow you to do whatever you want.”
BlueTriton Brands — the company that took over bottling from Nestlé in 2021 — has been diverting and bottling water from eight springs called Strawberry Creek in public lands of the San Bernardino National Forest for more than a century. The springs are the namesake source of Arrowhead brand bottled water, a household brand whose label reads “Since 1894.”
The board began investigating the company’s activities in those public lands in Southern California in response to complaints by local activists, and after an investigation by the Desert Sun newspaper sparked public outcry. It showed that the company’s permit from the Forest Service to divert water had long expired.
In 2021, the water board concluded that BlueTriton lacked valid rights there and issued a draft cease-and-desist order. The company challenged it and requested a hearing, leading to a series of complicated and expensive virtual hearings with lawyers calling witnesses and presenting data, maps and historical documents.
Today’s cease-and-desist order began with a letter by Amanda Frye, a Redlands resident and of the leading local activists who brought state and federal attention to the case. All told, she spent nine years of digging into public records and assisting the state water board in further investigation.
“This case shows the public has a voice and can make a difference, and it’s saying to corporations that you can’t steal our water. It belongs to the people,” said Frye. “All the documentation was there. The truth is people just hadn’t asked the questions. Even during the drought, no one told them to stop. I think maybe this is a sign of change.”
Up until this hearing, BlueTriton’s lawyers argued that the cease-and-desist order went beyond the water board’s authority. They said water taken from Strawberry Creek is not surface water, which the water board has clear authority to regulate, but rather groundwater.
“This ruling creates water rights uncertainty and negatively impacts every water agency and farmer in California, and in doing so, indirectly harms every Californian. BTB will vigorously defend our water rights through the available legal process,” said BlueTriton Brands spokesperson Laura Krueger, calling the order a “radical departure” from statutory limitations.
The water board ordered BlueTriton to immediately stop taking water for bottling from most of its water-collection tunnels and boreholes at 10 sites by Nov. 1. The company, which said it sources Arrowhead bottled water from 11 sites across California, has 30 days to appeal.
Since 2015, California has attempted to confront water scarcity challenges that come with a changing climate by solidifying the state’s often fuzzy and notoriously complex system of water rights through the state water board. Just last year, it began an effort to digitize its records room of paper water rights.
“This is a symptom of how understaffed the water board has been to enforce the water rights code as is and and a reflection of how little enforcement has happened over the decades,” said former board chair Felicia Marcus during Jerry Brown’s governorship.
“But one of the good things about this administration is they have given the water rights division a lot of money to modernize, both by digitizing the water rights system which is 100 years behind the times, but also staffing enforcement so they’re not a joke.”
Across California, there are some 10,000 holders of a water right — the legal underpinning to use water — some of which date back to the 1800s. Not only is the system notoriously complex and opaque, but many Native American Tribes and environmental justice organizations allege it fundamentally favors early white settlers at the expense of indigenous people and the environment.
While many of those water users have strong legal underpinnings for their water rights, such as large agricultural or municipal distributors, others may not have strong documentation — particularly the longest-standing rights called pre-1914 and riparian rights.
Now new technologies such as satellite evapo-transpiration measurement systems will allow more members of the public to see how much water is being used on particular plots of land and investigate their right to use it, said Michael George, the water board’s former Delta Watermaster.
“There are individual farmers who put a pump or a siphon on the river, or create modest diversion dams, to back water up so it can flow into their pipes.” George said. “That’s where there’s a lot of uncertainty and lost documentation, and I do think those kinds of diversions are destined to get more focus.” .
Curiosity and countless hours of unpaid research went into Amanda Frye’s devotion to this issue. She encourages others take up the mantle and dig into who and what uses the water in their communities.
“This went way beyond what I could have ever imagined,” she said. “Everything I used sat in public records of San Bernardino County. So I tell people put together a case, find the documents. ”