When the Nestlé Waters North America, Inc. 1041 permit hearing began last Tuesday evening, there were many members of the Chaffee County community who hoped that it would be over this week, that the Chaffee Board of County Commissioners would hear the case, take public comment and vote. That has not happened, but a clear way forward is outlined in an upcoming 1041 permit story.
Instead, what became a marathon public session on Tuesday evening beginning at 5:00 p.m. and stretching until nearly 12:00 Midnight, laid the groundwork for two public hearing sessions on Thursday. As per the plan, the Tuesday session laid out the basis for the application by Nestlé for a renewal of the state’s 1041 permit for their continued operation of their Ruby Mountain Spring and their pumping station in Johnson Village.
1041 is a Colorado state statute that allows Colorado counties to review certain things related to water projects with natural resource areas of state interest. “These are performance standards, not zoning standards. We don’t dictate use of land for environmental capacity,” said Chaffee Attorney Jennie Davis, who provided an overview of the 1041 permit process. “The question tonight is whether the applicant should be granted a permit renewal allowing them to truck the water they own out of the basin.”
Davis outlined the authority of the BoCC including their authority to deny, to add conditions of approval or to shorten the period of approval, showing reasons for doing so.
The lengthy session moved on to staff reports covering the applicant’s progress in meeting permit conditions. They pointed out that Nestlé has never pumped out as much water from the Ruby Mountain spring as their permit allows and their conclusion that Nestlé has not disturbed the wetland or the river.
Cooper Hodge, age 14 submitted a letter that asked, if the county was going to renew this 1041 permit, then “give us a class and tell my generation why you let them take our water.”
Other experts were called upon to provide perspective, including a water expert, a Chaffee Housing expert, the Chaffee landfill manager, and the county’s recycling resource manager.
Water consultant Gary Thompson outlined the Nestlé water use. “There has been no injury to water rights because an equal amount is discharged into the [Arkansas] River from other approved sources,” said Thompson. “There is a release of water by the Upper Ark Water Conservancy District …the agreement is that the Upper Ark provide 200-acre-feet of water into the river to match the amount pumped … the 112-acre-feet a year that they take is much less than the 2,000-acre-feet. discharged by the Ruby Mountain Springs.”
Chaffee’s Office of Housing Director Becky Gray said that if other conditions were to be added, that support of the county’s need for affordable housing might be substituted for the [truck] driver recruitment condition in the original permit. “I’d recommend they instead establish a $500,000 affordable housing fund to be held by the Chaffee County Community foundation as an appropriate and achievable community benefit.
Colorado Parks and Wildlife Manager Jim Aragon explained their efforts beginning in spring 2019, with Nestlé regarding a high-value Big Horn Sheep-watching area. “We’ve looked at the development of a watchable wildlife area, [there have been] lots of rafter sightings of Big Horn sheep found on either side of CR 300. We have two perpetual fishing easements….the second is an easement access off CR 300 just upriver from the Ruby Mountain Camp area, where anglers can fish upriver from the Nestlé area.”
Director of the Upper Ark Water Conservancy Terry Scanga explained that that organization has been working with Nestlé since 2013 when they developed an augmentation plan, rooted in the fact that a 1969 Colorado ruling confirms a constitutional right to appropriate water.
“It cannot be denied. There were water rights on this land….they are 1970 rights so they aren’t a priority, so they had to make replacements for the water,” said Scanga. “The Hagen’s [previous owners] who used to own that land were depleting [the river] for their fishery…there was actually a hole in the river there and the applicant is now making replacements that weren’t happening before. They are enhancing the flows of the Upper Arkansas Basin.”
Nestlé Waters Resource Manager Larry Lawrence gave a short presentation in which he asserted that “the only conditions we haven’t met are the two years we were below 50 percent on drivers [who per contract are jobs that are to be based in Chaffee County]. We’re in the stages of setting up the conservation easement, a fishing easement, a parking area, and the framework to protect the property long term.”
He reiterated that the tanker drivers who deliver the water to the bottling plant in Denver have good jobs. “Our drivers are tanker drivers who need special permits and they need three years of driving in the mountains to qualify. OUR drivers make $28/hour; they are well-paid. Our problem isn’t housing, it’s training. That’s why we’re working with CMC on a new driver training program.”
Finally, on the far side of 10:00 p.m., the opposition group known as Unbottled and Protect Chaffee County Water LLC was able to take the podium for an hour-long presentation. Their advancement to that position came with a healthy chat conversation, part of the Zoom virtual audience.
The group led by Tom Bomer and Jennifer Swacina raised objections focused specifically on the components of the permit that had not been met, concerns over the environment, the state’s drought situation, underfunding of the school scholarships, and plastic waste.
They specifically pointed out what would appear to be self-serving [in the current permit], to allow Nestlé to do its own monitoring of water and the scholarship fund. [It says] that “Nestlé will add an annual amount to be determined by Nestlé in its sole discretion; they put in $1,000 for each fund in any single year designated as the Nestlé Water Scholarship…they can claim they are making annual contributions, but there is nothing for an upfront funding of the endowments,” said Bomer.
The group pointed out ” You can’t ignore the ethics of monetizing water … but Nestlé has been taking half their permitted amount, but 65 million gallons a year is enough water for 2,000 homes a year… the augmentation of the river does not recharge the aquifer… It’s a shell game of water.”
One reality hung over the night’s proceedings; the global Nestlé corporation has announced that it may divest of its Nestlé Waters North America brand line. No one knows if this might occur (if it does) and when this might occur, or what the impact might be on the company’s agreements and permits.
Corporate brands such as the Arrowhead Water brand (the brand that the water from Chaffee County is bottled as) have value. Brands are valued by packaged good companies such as General Foods, General Mills, Kellogg, and Coca-Cola. If, on the other hand, a Wall Street hedge fund or corporate raider were to acquire Nestlé Waters North America, they might decide to dismantle the company on the theory that the parts are more valuable than the whole.
The opportunity for general public comment began on Thursday, Oct. 22 at 9:00 a.m., where this public hearing coverage will pick up.
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