In a decision that blessedly occurred before 10 pm. on Oct 22, the Chaffee Board of County Commissioners (BoCC) made the unanimous decision to continue the hearing for the Nestlé Waters North America, Inc. 1041 permit to a date certain; 1 p.m. Thursday, Nov 5, That session will be limited to deliberation and it will not include more public comment. Commissioners may ask for clarification from those subject matter experts called during the public hearing.
“We’ve been a good citizen and a good steward of our land. We took land generating less revenue to the county and generated more taxes and revenue for Chaffee County,” said Nestlé District Manager Larry Lawrence in his concluding comments on Oct. 22. “We’re willing to explain a better plan to train truck drivers. We’re willing to do better on plastics issues and recycling. We value our relationship … we’re proud of our job…and we’re proud of the job we’ve done.”
The decision came after two days of public comments during multiple hearings, with hours of testimony laying out the parameters of a 1041 permit, the limitations on the decision to be made by the Chaffee BoCC, and hours of expert testimony. And that was before hours of comments from the community, much of it in opposition to the renewal of the permit that allows Nestlé to pump spring water from land that it owns below Ruby Mountain, store it at its pumping station in Johnson Village, and then truck it to its Denver bottling plant.
The final evening of comments included more public comments, a Zoom chat area filled with both facts and some inaccuracies, and the opportunity for a rebuttal from Nestlé. One resident asked for a decision by the Chaffee Board of County Commissioners prior to the Nov. 3 election, and commissioners were quick to correct that perception.
“You asked for a decision before the election and to do that we would not be following due process….it is not possible,” said Commissioner Greg Felt.
Several members of the public expressed concerns about what would happen to the permit agreement if Nestlé were to sell, demanding answers from the Nestlé representatives at the meeting. Given that any corporate sale would happen at the global corporate-level (Nestlé is Swiss-based) that is not only not possible. Others worried that if sold, the land would become a subdivision that would sink homeowner wells into the area that would not be environmentally sound.
Other public comments included topics that had been raised during the morning public hearing, including droughts, climate change, whether it could help the county transition to a zero-waste plan, and claimed that the profits Nestlé realizes from the sale of its Arrowhead brand water is not being shared back to Chaffee County.
We helped create the Arkansas River Recreation Area …I’m one of the three county residents who know water – Terry (Scanga), Greg (Felt) and me — and it’s clear to me that Nestlé is doing all they can to comply,” said Reed Dils, representing Trout Unlimited. “We’ve got more public access and they are working on a third access point, now there’s a parking lot, there are plans to improve the dangerous road access, and a conservation easement with CPW will protect the sheep and provide more fishing access.
“By doing what they are, it will protect us from a potential large subdivision If this is denied, Nestlé could sell the water rights to a city in the metro area,” added Dils. “This could cause a water war that the county could lose… I have faith in the county commissioners to negotiate this. Denying Nestle a permit does not solve these problems – phasing out plastic bottles and single-use bottles would be the way to handle the plastic waste.”
Other members of the public asked a variety of clarification questions, including whether an annual compliance review was possible, whether the length of the 1041 permit could be shortened, or whether there could be a clause to adjust the amount fo water extraction based upon changing conditions including drought or climate change.
Rick Hum noted that while the 10-year permit made sense as Nestlé was starting the operation, a shorter timeframe might help the county keep better track of their operation.
Linda Erickson pointed out that in her view the schools’ endowment fund conditions had not been met. Jon Pray said that in his view he didn’t believe that the benefit for the county outweigh the losses, adding “I”m not sure you want this thing with Nestle to be your legacy… we’re in the midst of a decade-long drought, facing another warm winter, our mean temp has risen three degrees in the past century” …I but ended by saying that he was open to considering a much shorter compliance period.
“It is a failing flawed contract and should not be extended. There is no need for this, no benefit, and no products that benefit us,” said Francie Bomer. She added that “If you want to impose conditions … Nestlé is most likely going to be sold, making this future uncertain, [your duty is to] protect the long term interests of the people you represent.”
The public hearing closed at 6:45 p.m., and at that point, the County Attorney Jennie Davis confirmed that all written submittals received by 5:00 p.m. had gone into the public record. Commissioners discussed how to proceed, with Felt saying “We have to draw a line somewhere so we can move to deliberation – is there a mechanism for the public to share – to get ideas as we go about that?”
The next stage of the meeting allowed the applicant to provide rebuttal and ideas, added to more than 10 hours of public testimony and a mountain of submitted documents. The next stage of deliberation (the Nov. 5 continuation date) may see the BoCC calling more expert witnesses or testimony if they choose, and all documents received will be available to the public on the county’s website.
Davis assured the commissioners that during the next stage they could review the existing documents, they might ask for more public input, they could draft a proposed document, whether an approval or denial and that document could have numerous findings or certain conditions.
The decision on whether to make such a document draft available for public feedback would be up to the BoCC. Ultimately, the commissioners face this reality; they are going to have to stop the public comment somewhere.
Nestlé Regional director Larry Lawrence was allowed a rebuttal, recapping the many steps that Nestlé has taken to show that it is a responsible corporate citizen and Nestlé lawyer Steve Thompson laid out the legal realities, including the fact that those opposed to the permit renewal were viewing Nestlé according to the standards imposed for municipal utilities with a service area within the county.
“There are three utilities that operate here that don’t have to serve infrastructure here. Pueblo Aurora and Colorado Springs have utilities here but they don’t operate here so they aren’t required to prove the concept of a service area – it is an obligation to serve the people within an area … this is not an applicable criteria.”
He reiterated that Nestlé is not draining the aquifer, which has multiple drainages, reminding the BoCC that the Nestlé wells are at the very bottom of Arnold Gulch, adding “If Nestlé doesn’t take this water, 30 seconds later this water will be out of the aquifer and in the Arkansas River. That’s why we focused our mitigation on the river, not the aquifer – our water is a contributor to the river …Every drop we pump is replaced.”
He ended by saying, “Your job is to mitigate impacts … we haven’t shown any.”
Lawrence rose to remind the commissioners and public audience that “Our bottles are 100 percent recyclable… we are #1 bottles.
Jim Coleman, who runs the Coleman Company that does the tanker trucking for Nestlé explained the difficulty in finding and training qualified drivers to drive the tanker trucks — who must navigate U.S. 285, considered one of the most dangerous road stretches in North America.
“Colman trucks have traveled 8.3 Million miles carrying spring water,” said Coleman. “In all those miles and years, there have been only three accidents. Within Chaffee County, we have not had one accident.”
Nestlé ended its presentation with a condition language proposed by Nestle: “As a condition of approving the transfer, the Permitting Authority may impose additional conditions to ensure the transferee will comply with the Permit.”
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