Supreme Court Rejects Appeal for Bottling McCloud River Water
By Paul Boerger
Published: Wednesday, May 2, 2007
Without comment, the California Supreme Court declined to review a January 2007 Third Appellate Court decision that reinstated the contract between Nestle and the McCloud Community Services District for Nestle to build a water bottling plant on the outskirts of the town.
The Appellate Court decision overturned a 2005 ruling by Siskiyou County Superior Court judge Roger Kosel who found the contract had violated CEQA in that a CEQA review should have been completed prior to an agreement with Nestle.
Nestle and the MCSD had been sued by a local citizens group, Concerned McCloud Citizens, and Nestle appealed.
Among other issues, the appeal by McCloud Concerned Citizens to the Supreme Court contended the Appellate Court decision contradicted numerous decisions regarding California Environmental Quality Act and undermined the “core” of CEQA.
“Obviously we’re disappointed,” said McCloud Concerned Citizens attorney Don Mooney. “It was a long shot at best. They only take a few cases out of the thousands they receive. We will continue to participate in the Environmental Impact Review process.”
The EIR comment period has ended and the draft EIR is currently in preparation for further public review.
Nestle project manager Dave Palais was pleased with the decision and said the contract is on the “appropriate legal path.”
“The recent decision by the California Supreme Court to deny review of Concerned McCloud Citizen’s appeal is final confirmation that what we had planned all along was the appropriate legal path,” Palais said. “As written, the contract between the District and Nestle Waters is contingent on the completion of the CEQA and NEPA analysis.”
The plant proposal has generated controversy with opponents claiming the district will not receive a fair share of the revenue, that the environmental reviews to date are inadequate, the amount of water Nestle will draw from the springs will damage the McCloud River and that the truck traffic to transport the water, estimated at 300 to 500 truck trips per day, will be disruptive and dangerous, especially on Highway 89.
Proponents say the plant will take a small amount of water from the spring, 1,600 acre feet of out an estimated total capacity of 16,000 acre feet, the jobs generated by the plant will be a boost to a economically depressed area and that the District will benefit from the contract revenue and other Nestle financial commitments to the city.
Recently elected McCloud Services District board member Alan Schoenstein said the issue that will now take the forefront is the Environmental Impact Review.
“That’s the big issue. The EIR has to go through the process,” Schoenstein said. “There may also be more suits.”
Schoenstein also pointed to the Third Appellate Court decision that said there were numerous “ifs” that had to be fulfilled for the contract to be valid.
“It’s a complicated issue with all the ifs. They are still out there,” Schoenstein said.
In its decision to reinstate the contract, the Third Appellate Court said the contract is “conditional” on a “series of ifs.”
“The agreement, while admittedly a binding contract, is conditional and does not grant Nestle a vested right of use of the project. The agreement is predicated on a series of ifs and commits the District to sell water to Nestle under the described terms only if the described terms are successfully completed,” the opinion states.
The Court’s opinion went on the describe the “ifs” as follows:
— If Nestle determines during the contingency period water bottling from the District’s springs is feasible and desirable;
— If Nestle selects a site for and designs a bottling facility and obtains all applicable government approvals and permits for the site and facility;
— If the District approves a design for water testing, monitoring, collection and distribution, including written approval of a new collection system, delivery system, and as yet unspecified necessary ancillary facilities;
— If the District and Nestle are able to develop a water supply contingency plan to address foreseeable emergencies; and
— “The biggest ‘if’ in the agreement however is if all discretionary permits, expressly defined as including CEQA documentation, review and approvals, along with the final adjudication of any legal challenges based on CEQA, are secured and all environmental, title, physical, water quality and economic aspects of the project are assessed,” said the opinion.
Diane Lowe of Concerned McCloud Citizens says the group will not give up it opposition to the plant and said the organization is also moving ahead with the EIR process.
“Nothing has changed for McCloud. The issues involved in selling this excessive amount of spring water for Nestlé’s water mining and distribution center continues within the EIR processes,” Lowe said. “The court has determined this a contingent, ‘tentative agreement’ within a definite time frame, for completion of these processes.”
Lowe also reiterated a charge that the process by which the district board approved the contract was flawed.
“We now know that on the night of September 29 2003, when the McCloud Community Services District Board of Directors approved the contract with Nestle, that the board did not have available to them the necessary and fundamental information for the approval of an agreement to sell water to Nestle,” Lowe said. “After three an a half years, an ever growing number of people, including the new MCSD board of directors in McCloud, are beginning to learn even more the magnitude of effects of this unprecedented, gargantuan and encompassing scheme.”
Palais said Nestle will continue to cooperate with all parties to bring the plant to fruition.
“We are glad that the proposed project is on track and we look forward to continuing to work with the County, McCloud Community Services District and local residents to bring economic development to the region,” Palais said.