John Graham
Salida

Activists in the communities which surround the Branch Brook Aquifer, located in the southern part of the state handily defeated a water extraction ordinance on a referendum vote in the town of Wells. The ordinance, written under the direction of the Nestle Corporate lawyers, would have opened the door to large scale bottled water extractors. The vote was 3,194 against large scale extraction and 1,420 for, a 69.2% margin!!! This was a stunning defeat for the corporation who was ousted from McCloud, California and in Shapleigh and Newfield, Maine this year.

Read the post, check out a series of articles on the same issue, or read up on the history of Nestlé activity in Maine. Hat tip to Lum Pennington.

Consider: #1 PET plastic bottles generate more than 100 times the toxic emissions to the air and water than making the same size bottle out of glass. Production emissions include sulfur oxides, nitrous oxides, and the chemicals styrene, benzene and trichloroethane.

Potter Bob photo

At the urging of Bill Donavan, County Commissioner Glenn’s come to the LoDo-esque studio – home to the Salida Citizen online news and information portal, as well as the local affiliate of Resort Sports Network TV and birthplace to random creative projects and spontaneous think tanks – to talk about Nestle.

For the better part of the first hour, the three of us discuss the various ways to define sustainability and the challenges and realities of striving to become a self-sustaining community.

When the conversation turns to Nestle, our discourse with Glenn remains predictably calm despite a subject matter that inflamed emotions over the course of a nine-month public hearing process. In his six years in the public eye as one of the trio of county commissioners, I’ve come to know that it takes a lot to ruffle Glenn’s feathers. Even-keeled, I can’t ever recall hearing Glenn either raise his voice in anger or burst into loud laughter. But I’d expect that of man whose heritage is steeped in raising cows and burying people, and I mean that in the most altruistic sense.

In retrospect, it’s clear Glenn’s decision on Nestle is consistent with a track record of voting for the greater good even when he knows doing so may raise the ire of lifelong friends. By birthright and a world view colored by the clear streams, river, mountain and sky into which he was born, Glenn, a registered Democratic, can’t help but champion the fundamental Western political dyad: fiscal responsibility and maintaining a practical balance between protection of natural resources and economic viability.

Creating a permanent conservation easement on the site where Nestle will harvest 65 million gallons of water a year to sell to consumers as Arrowhead brand bottled water tops the list of benefits Glenn believes the Nestle project brings to the county. If not for Nestle’s eleventh-hour concession to grant a permanent, rather than 10-year, conservation easement on the land, Glenn said he would not have voted to approve the project. Glenn also believes the very real alternative to Nestle could have been another ranching parcel bought and subdivided into two-acre cookie cutter lots dotted with the developer’s choice of modular homes, McMansions or something in between. Glenn points out that such a housing development at the mouth of Brown’s Canyon would be in direct conflict with the Chaffee County Comprehensive Plan and the loud and consistent insistence of county residents that the preservation of the recreation, wildlife and viewsheds along the Arkansas River corridor are a top priority.

As a private water rights holder himself, member of the Arkansas River Basin Roundtable and champion of the county’s recreational in-channel diversion on the Ark, Glenn says it was important to him to ensure Nestle is a water neutral proposition. To that end, during the public testimony it was obvious Glenn took seriously the testimony by the Upper Arkansas Water Conservancy District that Nestle’s lease of 200-acre-feet of Aurora-owned water to replace project depletions could create deleterious impacts in the valley in extreme drought years. Glenn said he also carefully considered citizens’ concerns and county consultant reports warning of the threat Nestle’s pumping operations present to wetlands on the Bighorn Springs parcel. Thus, Glenn considers it a victory that Nestle has withdrawn the Bighorn Springs parcel from its operational plan and that there are conditions in the permit resolution, recommended by county water counsel Jim Culichia, aimed squarely at mitigating UAWCD’s concerns.

On another public hot-button issue, Glenn said he consistently tasked the county’s own legal counsel on the topic of Nestle’s economic impact. Despite every which way he tried to poke holes in the economic benefits picture painted by Nestle, Glenn said he was met with the same reply: 1041 permit applicants, under the county’s adopted 1041 standards, do not have to provide an economic benefit; in fact, they can even be economically neutral, they just can’t have a detrimental effect. Even though Nestle will contribute, at best, a half dozen truck driving jobs and a handful of short-term construction jobs, for some families, Glenn said, paychecks even for just a few months is enough to help them get by especially during this economic downtown.

As with any of the other decisions he’s been faced with as county commissioner, Glenn said he looks at “what we started with, what was proposed, what we ended up with and what would happen if it was denied.” Most importantly, Glenn said, he has to work within the legal realm that in this case, among other things, prohibited him from doing any research into Nestle’s corporate reputation or track record in other communities.

When it finally came time for the commissioners to start the deliberative process, county special legal counsel and 1041 specialist Barbara Green repeatedly reminded the men that they had three choices: approve or deny the proposal as presented or approve with conditions.

I asked Glenn why it seemed the commissioners proceeded directly to “approve with conditions” without providing the public any insights into why the proposal wasn’t flatly approved or denied.

“I can’t speak for the other two commissioners but my mind wasn’t made up until the very last day,” Glenn said. “Out and out denial of the permit . . . well you know what would’ve happened  . . . we would have been sued,” Glenn explained. “On the other hand, some folks thought we should OK Nestle just because they’re a Fortune 500 company. But the conditional approval process allowed us to look at everything, all the pro’s and con’s and do a balancing act.  An outright approval or denial would not have allowed us to look at the project in it’s entirety and would have been a disservice to the citizens of Chaffee County as a whole.”

In the end, Glenn said he believes Nestle does provide a little bit more benefit than detriment to the county, squeezing his forefinger to within a half-inch of his thumb to illustrate his point.

He said he hopes people who are upset with the Nestle decision can take a step back, “look at what (the commissioners) were asked to consider, what we could legally consider and whether we did take public comments into consideration.” In his opinion, the process was “open and good” and the county implemented conditions on the things people had concerns about and even got Nestle to agree to some things that were beyond the county’s authority to require.

Glenn worries about a court challenge to the Nestle decision or the possibility that citizens opposed to Nestle will follow through on the threat to mount a recall campaign.

“The hearing process was divisive enough,” Glenn said. “I saw what happened the last time there was a recall in this county and if that happens now, it will throw us back 40 years. It won’t help bring us together and it will only open the door to the people who already look for opportunities to create wedges in the community.”

However, if the Nestle decision is challenged in court, Glenn pointed out that under the terms of the financial mitigation fund, Nestle will have to pay the county’s legal fees. If Nestle doesn’t pay up, the permit is considered in non-compliance and therefore subject to revocation, Glenn said, slapping his hands against each other in the gesture that signifies washing your hands clean.

Nestle passed the first of several hurdles in its plan for industrial extraction of water from Chaffee County, when the County Commissioners approved the 1041 Application on September 23, allowing Nestle to construct an extraction facility at Bighorn Springs, lay a 5-mile pipeline along County-maintained roads, and build a loading dock at Johnson Village. If Nestle can pass other significant hurdles, it will set a precedent for future, no-local-benefit water extraction elsewhere in Chaffee County and Colorado.

The negative effect on Chaffee County is many-layered. The area is a nationally recognized premier site for residences, due in part to its scenery, including the agricultural Valley floor as well as the surrounding mountains. Of equal importance is the small-town setting of Salida and Buena Vista. Growth depends on the availability of water and land, which are the two most important assets this County has. A multinational corporate giant will protect its upstream water supply and quality by blocking development wherever it perceives a threat. Nestle has an established reputation for abusing local rights, and having a corporate bully in the Valley will NOT be a selling point to potential residents.

The State Water Engineer must issue a temporary permit for water extraction before Nestle can pump any water. All parties with water rights that may be affected may participate as objectors in the hearing that the State Water Engineer will hold. Interestingly, the County will be one of those objectors. A similar process (but with greater scrutiny) will occur if Nestle seeks a permanent decree in Water Court.

Another way to stop Nestle is through the 1041 Permit’s provision for the public to challenge the decision of the Commissioners through judicial review of the terms. To do this, there must be sufficient evidence of public interest. Full-house attendances during the summer hearings substantiate both interest and opposition, with more than 90% of the public testimony against the project.

The City of Aurora must agree to several 1041 Permit stipulations before approval. These include documentation and disclosures of water use that may affect water availability in Chaffee County. It is not at all clear that Aurora will consent to this inspection on behalf of a corporation with Nestlé’s global reputation for duplicity.

There are still ways to stop it from happening. Support bottle deposits! Drink our own good tap water! Get more information.

Ed Berg

Earlier today, the three elected Chaffee County Commissioners gave the formal green light to a plan by Switzerland-based Nestle Waters North America to extract 65 million gallons of spring water that flows beneath ranchland at the mouth of the Arkansas River, pipe it four miles to a truck loading station where it will then be driven two hours to Denver for bottling and selling as Nestle’s Arrowhead brand of bottled water. Citizen opposition continued to the end, as a rally in the park opposite the county courthouse in Salida attracted more than 120 people, many of whom packed the commissioner’s chambers for the final public hearing on Nestle.

Of the dozen or fewer people who testified in favor of Nestle over the course of its public review, almost without exception, all stood to enjoy direct financial benefit from approval of the project. I hope these good, hard-working folks and neighbors understand that the opposition to Nestle was never about them. Like any private property owner in this country, the ranchers can sell their land to whoever they believe gives them a fair price for it. What happens after the sale is no longer the seller’s responsibility. However, when the new landowner proposes to change the existing uses on the land, in particular in this case when the property is deemed to be “an area of state interest,” then the matter must be considered by elected officials during a public process in which the public has a chance to air their concerns about how that new land use designation may impact them, for better or worse.

Over nine months of public hearings, hundreds of citizens passionately voiced their unambiguous opposition to Nestle. This, in the face of a hearing format that seemed biased in favor of giving Nestle every courtesy and consideration while on more than a few occasions showing visible irritation at testimony by local residents. In packed meeting rooms in Buena Vista and Salida, taxpaying voters waited patiently through inhumanely long meetings for their turn to speak out. The commissioners allowed Nestle to run beyond their allotted agenda time by – on some nights – hours, yet when citizens went a few seconds over their 3-minute allotment of time at the microphone, Commission Chair Holman threatened to forcibly remove the speakers. The bias was apparent again today when in the waning moments before they unanimously agreed to approve Nestle, the commissioners haggled over language pertaining to a Nestle-funded community endowment. In refusing the quantify – at all – Nestle’s annual programmatic contributions to the fund, the commissioners left it to Nestle – rather than the community – to define the dollar amount of philanthropic giving that constitutes being a “good neighbor.”

Face to face with a cadre of Nestle lawyers and high-priced experts, campaign promises by Giese and Holman, made less than a year ago, melted away as quickly as butter in August. Holman pledged that on his watch, no more water would leave this valley. How then could he sign a resolution permitting 65 million gallons to be sucked and trucked beyond county lines? Giese famously said that green is the color of the future of this valley. How could Giese possibly interpret as good for green all the warnings thrown up by the county’s own consultants and referral agencies warning that Nestle could have negative impacts to surface water quantity and quality, groundwater quantity, air quality, wetlands and the plants and critters that depend on the riparian habitat.

Public opposition to Nestle boiled down to several key themes: Incontrovertible evidence prior to their arrival in Chaffee County and even during the public hearing process made it hard to believe Nestle could, without very specific legally binding stipulations, be the “good neighbor” they purport to be; the intentionally weak and sugar-coated science Nestle presented during its testimony belies lurking danger to surface and groundwater resources as well as riparian habitat that is bad for the longterm sustainability of the environment, as well as future economic development prospects for the valley. Even the county knows this as implied in the Special Land Use Permit where the county writes “Future development outside the subject parcels may impact the quality or quantity of spring water related to the Project.” It would be naive to think Nestle won’t assign some of its vast resources to block any future housing or commercial development upgradient of its Bighorn and Ruby Mountain springs. It’s hard to imagine any small developer or business person being able to prevail against a fight waged by the world’s largest food and beverage maker.

As county special counsel and 1041 permit expert Barbara Green often reminded them, the commissioners were faced with three options when considering the Nestle proposal: They could have simply said yes, they could have simply said no, and they could have done what they did, which was grant conditional approval. In part in response to citizen testimony and in part due to the incomplete nature of the application when it was originally submitted, Nestle’s proposal morphed so many times during nine months of testimony that county staff and commissioners had trouble remembering exactly what was promised. Yet when they began their deliberations, the commissioners never once even  considered the “no” option nor did they seem particularly compelled to explain to the public their decision to proceed directly to a discussion of conditional approval. Despite overwhelming public sentiment against the project as well as the county’s own staff finding the proposal deficient in 20 key criteria, it remains a mystery why the commissioners failed to ever consider “no” as an option and instead crafted a shopping list of conditions – 44 in all – that “should” help Nestle satisfy the permit criteria.

The Nestle case is a travesty of public process. The tragedy would only be magnified if the citizens of Chaffee County allow today’s decision by the commissioners to go unanswered. To that end, at a minimum we need to work toward electing officials who are accountable and have the political courage to turn a deaf ear to special interests and vote the will of the people like the they did recently in Flagstaff, AZ. After city council turned down their Nestle proposal, the Flagstaff mayor told the media such water harvesting schemes, especially in the arid West, “don’t pass the common sense test.” Future elected officials, and their appointees in our municipal and county governments, must also understand and demonstrate commitment to sustainability balancing both the environmental and economic sides of the equation. We need to demand and enact changes to our local comprehensive plan and zoning codes that give teeth to what has clearly emerged as a citizen-led mandate for sustainability. Nestle preyed on Chaffee County because we were an easy mark – politically less sophisticated, under-resourced at the staff level, no mention of the word “sustain” in our county’s guiding planning documents. and no organized community watchdog group. Chaffee Citizens for Sustainability  have assumed the mantle of watchdog but to win the bigger battles that lie ahead, they will need the support of like-minded neighbors to succeed in a protracted campaign that will require giant doses of time, money and willpower.

With this eloquent opening quote from the Thomas McGuane novel, The Longest Silence, Jay Hake, legal council representing CCFS, began his talk last night at the senior center.

Hake delivered a short and succinct outline for group discussion and laid out the options he felt were viable directions to continue.

The first option was to do nothing. He followed this by saying that perhaps now was the time to sit back and say we did our best, got a few things addressed in the 1041 permit that would not have happened without the involvement of the CCFS and move onto other projects.

The second option was a recall of commissioners. From a standpoint of Nestle’s water extraction operation this tack would have no impact at all. It wouldn’t undo where we were today and it wouldn’t halt Nestle. However, it would make a clear statement to commissioners about the public’s feelings on their decision.

Option three would be to request a Judicial Review of the Commissioners’ decision to grant the 1041 Special Land Use Permit. If the County Commissioners approve the draft of the 1041 Permit Resolution on Sept. 23 then citizens have 30 days to challenge. Such a request would be filed in district court and would examine such issues as whether the commissioners followed proper public process procedure and whether the resolution of approval exceeded their statutory authority.

Option four would be to join as an objector in district water court. While on rare occasions groups such as CCFS have participated in water court challenges, water court bases decisions on water rights. CCFS does not own any water rights.

John Graham, president of the CCFS, and Jay Hake both reiterated that these last options would require a serious commitment from the community of time and money. Although currently a local issue, Chaffee County’s battle with Nestle reaches far outside our valley and brings to the forefront the possibility of water extraction in other areas of the state. CCFS members were also informed that they were not alone in the fight and that several large national groups including Food and Water Watch had been following their progress and were willing to help.

After listening to Hake outline the options available to continue to resist Nestle’s efforts to harvest water in Chaffee County, those present agreed to help organize a public rally at the Chaffee County courthouse on Wednesday, Sept. 23, at 9am., an hour before Commissioners are expected to review and formally approve the formal resolution giving Nestle the green light to harvest 65 million gallons of spring water annually. At the special meeting, Commissioners will also consider granting the water bottler permission for an easement through county property to construct the project infrastructure.

Rally organizers have a two-fold goal. They hope to both send a message to Commissioners that the community is unhappy with the decision to grant conditional approval to the project, as well as raise awareness within the community that there are still options to pursue to try to block Nestle from implementing its project. The county has outlined 44 conditions it feels should help Nestle satisfy the requirements of a 1041 permit.

To review the County’s final formal resolution on the Nestle project or to become a member of the Chaffee Citizen for Sustainability visit their website at www.ccfsustainability.org

In a letter to the citizens of McCloud, Nestlé CEO Kim Jeffrey claimed that the McCloud facility was obviated by changing business conditions and the company’s successful establishment of a plant in Sacramento.

The nature and economics of our business require us to continuously evaluate new spring sources and potential project sites. As most of you know, this summer we were able to secure a site for a new bottling facility in the Sacramento area to help supply our customers in Northern California, the bulk of which reside in the Bay Area and Sacramento. The Sacramento plant will allow us to serve our Northern California customers with lower distribution costs and a reduced environmental footprint. As a result, and after conducting a thorough analysis, we have concluded that we no longer have a business need to build a new facility in McCloud and we are withdrawing our proposal to build a bottling facility in your community.

Tom Chandler of the website Stop Nestlé Waters gave more credit to the grassroots opposition engendered by the project:

Here was a predatory multinational preying on a small rural town – as it had in other locations – but this time, not all the local residents were willing to shrug it off and walk away.

Instead, they rallied, formed groups, gained a small amount of financial backing, garnered a significant amount of international media attention, and ultimately forced Nestle to abandon its hugely one-sided contract.

John Graham, co-founder of Chaffee County Citizens for Sustainability, said of the decision that he was “encouraged to see that perseverance by a local community can bring positive results.”

For local activists, though, the McCloud announcement was tempered by the publication of the draft resolution approving Nestlé’s 1041 permit in Chaffee County.

Graham noted that the draft resolution would “almost certainly” be approved by Commissioners at the September 23 BOCC meeting. He said that he couldn’t comment on the document because he was still reading it. The resolution is likely to be discussed at the next CCFS meeting on September 16.