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ASSESSING THE ENVIRONMENTAL RISKS OF THE

WATER BOTTLING INDUSTRY’S EXTRACTION OF

GROUNDWATER

HEARING

BEFORE THE

SUBCOMMITTEE ON DOMESTIC POLICY

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

DECEMBER 12, 2007

Serial No. 110–163

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

TOM LANTOS, California

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

DAVID MARIN, Minority Staff Director

SUBCOMMITTEE ON DOMESTIC POLICY

DENNIS J. KUCINICH, Ohio, Chairman

TOM LANTOS, California

ELIJAH E. CUMMINGS, Maryland

DIANE E. WATSON, California

CHRISTOPHER S. MURPHY, Connecticut

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

BRIAN HIGGINS, New York

BRUCE L. BRALEY, Iowa

DARRELL E. ISSA, California

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

CHRIS CANNON, Utah

BRIAN P. BILBRAY, California

JARON R. BOURKE, Staff Director

(III)

C O N T E N T S

Page

Hearing held on December 12, 2007 ...................................................................... 1

Statement of:

Hauter, Wenonah, executive director, Food & Water Watch; David W.

Hyndman, Department of Geological Sciences, Michigan State University; Noah D. Hall, Wayne State University Law School; Joseph K.

Doss, president and CEO, International Bottled Water Association; and

James Wilfong, executive director, H20 for ME ......................................... 106

Doss, Joseph K. .......................................................................................... 154

Hall, Noah D. ............................................................................................. 123

Hauter, Wenonah ...................................................................................... 106

Hyndman, David W. .................................................................................. 116

Wilfong, James .......................................................................................... 169

McFarland, Richard, founding member, McCloud Watershed Council;

Terry Swier, founder and president, Michigan Citizens for Water Conservation; Bill McCann, member, Board of Directors, Save Our Groundwater; and Heidi Paul, vice president of corporate affairs, Nestle Waters North America, Inc. ............................................................................... 13

McCann, Bill .............................................................................................. 26

McFarland, Richard .................................................................................. 13

Paul, Heidi ................................................................................................. 34

Swier, Terry ............................................................................................... 19

Letters, statements, etc., submitted for the record by:

Doss, Joseph K., president and CEO, International Bottled Water Association, prepared statement of ..................................................................... 156

Hall, Noah D., Wayne State University Law School, prepared statement

of ..................................................................................................................... 125

Hauter, Wenonah, executive director, Food & Water Watch, prepared

statement of ................................................................................................... 109

Hyndman, David W., Department of Geological Sciences, Michigan State

University, prepared statement of ............................................................... 118

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio:

Article dated Spring 2006 ......................................................................... 2

Prepared statement of ............................................................................... 6

McCann, Bill, member, Board of Directors, Save Our Groundwater, prepared statement of ........................................................................................ 28

McFarland, Richard, founding member, McCloud Watershed Council, prepared statement of ........................................................................................ 16

Paul, Heidi, vice president of corporate affairs, Nestle Waters North

America, Inc., prepared statement of .......................................................... 36

Stupak, Hon. Bart, a Representative in Congress from the State of Michigan, prepared statement of .......................................................................... 181

Swier, Terry, founder and president, Michigan Citizens for Water Conservation, prepared statement of ................................................................. 21

Wilfong, James, executive director, H20 for ME, prepared statement of .... 171

(1)

ASSESSING THE ENVIRONMENTAL RISKS OF

THE WATER BOTTLING INDUSTRY’S EXTRACTION OF GROUNDWATER

WEDNESDAY, DECEMBER 12, 2007

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON DOMESTIC POLICY,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:05 p.m., in room

2154, Rayburn House Office Building, Hon. Dennis J. Kucinich

(chairman of the subcommittee) presiding.

Present: Representatives Kucinich, Shays, and Issa.

Also present: Representative Watson.

Staff present: Jaron R. Bourke, staff director; Charles Honig,

counsel; Jean Gosa, clerk; Natalie Laber, press secretary, Office of

Representative Dennis J. Kucinich; Leneal Scott, information systems manager; Chris Mertens, intern; Alex Cooper, minority professional staff member; Larry Brady, minority senior investigator

and policy advisor; and Benjamin Chance, minority clerk.

Mr. KUCINICH. Good afternoon. I am Congressman Dennis

Kucinich, chairman of the Domestic Policy Subcommittee of the

Committee on Oversight and Government Reform. The committee

will now come to order. With me here is the ranking member of the

committee, the Honorable Darrell Issa of California. And he and I

will be participating in this hearing, examining the environmental

issues presented when water bottling plants extract groundwater

and spring water from water sources in rural communities.

Now, without objection, the Chair and the ranking minority

member will have 5 minutes to make opening statements, followed

by opening statements not to exceed 3 minutes by any other Member who seeks recognition. And without objection, Members and

witnesses may have 5 legislative days to submit a written statement or extraneous materials for the record.

I have long had an interest in issues relating to water and water

supplies. As a matter of fact, in a Spring 2006 issue of Waterkeeper

Magazine, I wrote a piece explaining my concerns about the annexation and overuse of waters in Lake Erie and the Great Lakes,

which is the largest source of fresh water in this country. And

without objection, I would like to submit that article for the record.

[The information referred to follows:]

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Mr. KUCINICH. Now, if we give any real thought when opening

a bottle of spring water, maybe it is to congratulate ourselves on

our healthy choice or to dream of a shrinking waistline. But it may

come as a surprise that virtually every aspect of the bottling industry’s extraction of groundwater, how much water to pump and from

where to pump it, the effects of pumping on the surrounding environment and who should have the authority to make pumping decisions, all these things are often hotly contested. For a variety of

reasons, bottled water is not like any other commodity. And the

protection of our Nation’s groundwater, often understood as held in

public trust, involves many crucial issues of public interest.

Some of these issues will not be our main focus today, such as

concerns about bottled water quality; the profit earned off water

even as public water infrastructure is neglected; damage caused by

the manufacture and disposal of the bottles; the propriety of transferring water resources out of a region or out of a country. Instead,

we will focus on the environmental effects of bottling on local communities.

The domestic bottled water industry, which includes both distilled municipal water and spring water, has seen remarkable

growth. Last year, Americans spent more than $10 billion on bottled water, which translates to an average annual consumption of

27 gallons per person, double the amount consumed just 5 years

ago. This growth has been a boon to the industry. The largest

bottler is Nestle Waters North America, which through rapid industry consolidation now controls 32 percent of the domestic market through its 14 different brands.

Because of the growing market for bottled water, bottlers are

constantly looking for untapped watersheds in relatively undeveloped rural communities which disproportionately bear the brunt of

pumping’s environmental impacts. As our groundwater hydrologists

will explain, for every gallon of water pumped out of the groundwater, there is one gallon of water lost to streams in the watershed. If the pumped water is not recharged, there is a real danger

of what could be called groundwater mining, which the U.S. Geological Service describes as ‘‘a prolonged and progressive decrease

in the amount of water stored in a groundwater system.’’ Moreover,

high capacity bottled water extraction in headwater locations can

cause large percentage reductions in the flow of streams and rivers

and the depletion of watersheds.

Bottlers may seek out private land owners or directly contract

with a municipality to obtain groundwater rights for years or decades. The issue is complicated by the fact that many rural communities have an interest in the economic activity that has been promised by the water bottlers. And indeed, some communities support

the location of bottling plants. Obviously, aside from the pure economic incentives, certain interests of the water bottling industry

are aligned with those of the local communities. Both have an interest in protecting the pristine water sources. In other respects,

however, these interests of bottlers and communities may diverge,

such as the downstream effects on surface waters or the long-term

visions of development and conservation.

Today we will hear from representatives of citizens groups that

have opposed the location of bottling plants in their communities,

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on the slopes of Mount Shasta in California, in Michigan and in

rural New Hampshire. They have often been frustrated by a complex patchwork of laws that they believe does not adequately protect the public interest.

Traditionally, the vast majority of groundwater consumption is

used for agriculture, mining and nonbottled municipal water. And

groundwater use has been mainly regulated by the States. Under

common law, groundwater has largely been regarded as a resource

that can be extracted by anyone who owns the land above an aquifer or spring. The common law was formulated before modern

science understood the connections between groundwater and surface water, and before the advent of large-scale mechanized pumping. As a result, it provides little protection for conservation.

Given the toothless nature of the common law, it is not surprising that States have enacted more comprehensive regulatory systems covering groundwater extraction. These come in a variety of

forms. Some States like New Hampshire have enacted comprehensive laws. And we will also hear about new legislation passed in

Maine and Michigan. These laws at best address the connection between groundwater and surface waters, mandate participation

among those affected by pumping and call for increasing levels of

security for larger withdrawals. At worse, State laws are woefully

inadequate.

Although groundwater management is mostly a State concern,

many of the important decisions about locating a particular plant

are local, the Federal Government does have a role. For years, scientists and policymakers have called on better funding for the U.S.

Geological Service so they can map and monitor groundwater and

its connection to surface water. The Federal Government could, but

generally hasn’t, taken other steps to prod the States to better

groundwater management. There is also the issue of whether Federal agencies adequately enforce Federal protections such as the

Clean Water Act, the Wild and Scenic Rivers Act and the Environmental Protection Act, that are triggered when surface waters are

imperiled by groundwater extraction. Finally, there is a concern

that the Food and Drug Administration’s definition of spring water,

which purports to ensure water quality, actually creates incentives

for pumping at the most environmentally damaging sites. As far as

I am aware, this is the first congressional hearing on many of these

issues, and it is my hope that the hearing will help the reform

process at all levels of government. So thank you.

And at this time I would like to recognize Congressman Issa, the

ranking member. Thank you, sir.

[The prepared statement of Hon. Dennis J. Kucinich follows:]

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Mr. ISSA. Thank you, Mr. Chairman. What most of you who

aren’t here regularly don’t know is the chairman and myself have

been able to very effectively find issue after issue we agree on.

When I say we agree on, we agree on the issues. We do not always

agree on the outcome or the view. The chairman and I have been

able to work together very well on finding good issues. This is certainly one.

In this case, I find it unfortunate that perhaps we are not looking at the underlying problem of bad potable water coming from

our taps. That is probably my greatest concern here today, and we

are not going to talk about it. Perhaps ancillarily, over time we will

begin working on the issue. For example, here in the District of Columbia, if this water, as I suspect it did, did not come from a bottle,

and is simply being disguised by being put into this carafe but in

fact came out of the tap, please don’t drink it. The amount of lead

in our water is such that on a repeated basis each generation is

told the previous generation didn’t do enough. We have relined. We

have done all kinds of things, but at the end of the day, and my

staff behind me reminded me, the District of Columbia recently

sent Brita filters out to take care of the accumulation of lead you

will have if you drink that water. This is a problem in the District

of Columbia and around the country.

Earlier, in the previous Congress, we dealt with arsenic. Dealing

with arsenic meant essentially the pumps in New Mexico and other

places were shut off, and people were forced to bring their water

in from other areas. We have a serious problem of delivering quality drinking water, consumable water in this country. To a lesser

degree, we have a problem delivering water for nondrinking purposes.

Mr. McFarland, I appreciate the fact you are from Shasta. I am

a Southern Californian. It is no surprise that southern California,

accused of killing fish and stealing water from the north, might at

times recognize that California is, if you will, ground zero for this

problem. Northern California has over four times the rain and

snowfall that southern California has, while southern California

has a majority of the population. Notwithstanding the attempts to

build canals and to move water from the north to the south, far

greater than all the bottled water that is being taken out of

groundwater in California, far greater, and as a result, we could

assume that what doesn’t go into the ground in northern California

and comes through peripheral and other canals doesn’t go into the

groundwater. California has been having this argument for in excess—well, I came to California—I will be honest—I came to California in the 70’s. It was the hot topic then. It is the hot topic

today.

Realizing that these problems in California and around the country will not easily be solved, I am an advocate for any system that

guarantees healthy drinking water for our citizens. I have questions for today that will not be answered.

And Ms. Paul, I am not letting you off the hook. I still can’t figure out why between drinking water and Starbucks coffee, gasoline

seems like a deal from OPEC. There is a high cost of delivery of

water through little bottles and so on. And I think that is a problem. The chairman pointed out in his opening statement that the

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question of disposal of tens of millions of little plastic bottles, not

just every year but every month, is a real problem in America; the

need to come up with an aggressive recycling plan; the need to, if

not regulate, certainly ensure that bottled water and other forms

of water delivered around the public systems are at or greater in

quality to those that can be received from the tap.

I thank the chairman for his bringing up this point today because it does open a dialog for the first time by this committee and,

as far as I know, for the first time recently in Congress, to the fact

that safe drinking water, affordable drinking water and sustainable

aquifers around the country are in peril. So although I mentioned

everything that wasn’t in today’s committee hearing, you have to

begin somewhere. I commend the chairman for beginning the process. I am sure that when we review the notes of today, we will find

far more available to us to digest than I am talking about here

today. And hopefully, in time, we will hit all of the issues leading

to America drinking high quality water.

And in closing, I will note that the chairman and I are both native Clevelanders. So I share the fact that the Great Lakes are the

greatest body of fresh water available on the planet and that very

much bee need to look at that as a resource that is carefully managed. And I yield back.

Mr. KUCINICH. I want to thank my partner on this committee,

Mr. Issa, for his comments.

And in response, I just want you to know that this is a beginning. I would like to be responsive to what you suggest in looking

at questions of the potability of water, drinking water, in this country as well as looking at the questions of water quality generally,

both for drinking and nondrinking purposes, as well as the issues

related to plastic, or bottled drinking water. I also want to say, and

I appreciate you mentioning Cleveland, because as I indicated in

my opening remarks, the issues relating to Lake Erie and protecting that drinking water and protecting the volume of the water are

also, you know, I know of concern to States like California, because

the access to water in your State is a serious issue as well. So I

want to work with you in making this the first of perhaps many

hearings we could have on this issue of water. And I appreciate the

gentleman’s comments very much.

Mr. ISSA. Thank you, Mr. Chairman.

Mr. KUCINICH. I appreciate it. If there are no additional opening

statements, the subcommittee will now receive testimony from the

witnesses before us today.

We will hear from Mr. Richard McFarland, who is a founding

member of the McCloud Watershed Council, a nonprofit community-based organization providing stewardship and advocacy for the

McCloud River watershed in the Mount Shasta region of California.

In addition to his advocacy, Mr. McFarland is president of Terra

Mai, a pioneer in the green building movement, which uses recycled lumber for its building projects. He has also worked as a professional river guide and an expedition leader.

Next we will hear from Ms. Terry—is it Swier?

Ms. SWIER. Yes.

Mr. KUCINICH. Ms. Swier is the founder and president of the

Michigan Citizens for Water Conservation, a nonprofit, grassroots

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organization of over 1,900 members. Ms. Swier has helped educate

State legislators and Members of Congress on the Nestle water

issue, and has raised the public’s awareness of the importance of

water diversion and export. In addition to her environmental work,

Ms. Swier recently retired after 30 years as a university librarian.

Next it will be Mr. Bill McCann. He serves on the board of directors of Save Our Groundwater and is chairman of the organization’s Committee on Legislative and Governmental Issues. Founded

in 2001 in response to a bottled water company’s attempt to draw

from a local aquifer, Save our Groundwater is a New Hampshire

seacoast area citizens action organization dedicated to protecting

water in the public trust. Mr. McCann has also been a New Hampshire State representative, where he served on the Resources,

Recreation and Development Committee.

And finally, Ms. Heidi Paul. Ms. Paul has been vice president of

corporate affairs for Nestle Waters North America since 2000. Ms.

Paul is responsible for all aspects of the company’s corporate communications and community relations. Before taking this post in

2000, Ms. Paul was the director of brand management for Nestle

Waters. She is also chairwoman of the Project WET, a not-for-profit

organization involved with international water education.

I want to thank each of the witnesses for appearing before our

subcommittee today. And it is the policy of the Committee on Oversight and Government Reform to swear in all witnesses before they

testify. I would ask that you rise and to raise your right hands.

[Witnesses sworn.]

Mr. KUCINICH. Let the record reflect that the witnesses answered

in the affirmative.

I ask that each of the witnesses now give a brief summary of

their testimony and to keep their summary under 5 minutes in duration. I would like you to bear in mind that your complete written

statement will be included in the record of the hearing.

So let us begin with Mr. McFarland, if you would begin your testimony and address the Chair, we appreciate your presence here.

STATEMENTS OF RICHARD MCFARLAND, FOUNDING MEMBER,

MCCLOUD WATERSHED COUNCIL; TERRY SWIER, FOUNDER

AND PRESIDENT, MICHIGAN CITIZENS FOR WATER CONSERVATION; BILL MCCANN, MEMBER, BOARD OF DIRECTORS, SAVE OUR GROUNDWATER; AND HEIDI PAUL, VICE

PRESIDENT OF CORPORATE AFFAIRS, NESTLE WATERS

NORTH AMERICA, INC.

STATEMENT OF RICHARD MCFARLAND

Mr. MCFARLAND. Thank you, Chairman Kucinich.

My name is Richard McFarland. My wife, Erika, and I settled in

McCloud, CA, 20 years ago. We started a small reclaimed lumber

business, which has grown considerably and is currently the largest private employer in our small town of 1,800. We started a family, and our three sons are also growing rapidly.

McCloud sits at the base of 14,000-foot Mount Shasta, a dormant

volcano that dominates the landscape in far northern California

and draws visitors from around the world. Mount Shasta’s glacier

and snow melt feed the McCloud River, a hydrogeologically unique,

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crystal clear, ice cold stream, well known as a world class trout

fishery. It is a major tributary of the Sacramento River, the backbone of California’s public water system.

McCloud is a former lumber company town. The McCloud Community Services District provide our de facto city government. We

are blessed with a spring-fed municipal water supply that provides

exceptional quality, untreated cold spring water to every tap in

town.

When I settled here in 1987, McCloud was economically depressed and was in a general state of disrepair. Most of the buildings downtown were dilapidated or boarded up. In the last two decades, there has been significant capital investment in McCloud.

One old timer recently told me that the town has never looked better. To the objective visitor, McCloud would appear to be thriving.

In the fall of 2003, during a public meeting, the 100-year contract

selling our water to Nestle was both announced and approved. We

had assumed that this hearing was going to be the beginning of a

public process. In fact, it was the culmination of back room negotiations between Nestle and a few local politicians and public servants. This triggered a series of events: a 3-year lawsuit, which resulted in the contract being thrown out by our county superior

court and later reinstated by an appellate court; Nestle serving

harassing and intimidating subpoenas on local community members, including myself; a draft environmental impact report, environmental assessment that generated an astounding 4,000 comments, most of them opposed to the project; the development of the

Siskiyou County Water Network and the Siskiyou County Protect

Our Waters Coalition.

The Mount Shasta area is already home to four other bottling

plants already pumping unlimited groundwater. The scale of the

proposed Nestle project raises serious concerns about cumulative

impacts to Mount Shasta’s unique volcanic ground and spring

water systems. California lacks comprehensive statewide groundwater legislation. Sound policy requires that groundwater management be based on science.

This is a State and national water policy issue. I respectfully request the following of the subcommittee:

Please consider Federal support for State and local efforts to protect community water resources. Specifically helpful would be U.S.

Geological Survey scientific inquiry to monitor and characterize

Mount Shasta’s ground and surface water resources. This is especially important in the face of potential climate change impacts on

California’s water supply.

Please ensure that the U.S. Forest Service completes an environmental impact statement for the Nestle project in McCloud. The

pipelines for the project travel through several miles of U.S. Forest

Service land on public easements intended for municipal use.

Please consider investigating the practices and impacts of Nestle

and other large water bottlers in McCloud and other small rural

communities around our country. Please consider enacting legislation or policies that protect the significant investment that taxpayers and ratepayers have made in our public water supply infrastructure from corporate exploitation.

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And finally, please consider investigating the negotiation process

that led to the contract between the McCloud Community Services

District and Nestle Waters North America. Thank you very much

for hearing my testimony today.

[The prepared statement of Mr. McFarland follows:]

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Mr. KUCINICH. Thank you, Mr. McFarland.

Ms. Swier.

STATEMENT OF TERRY SWIER

Ms. SWIER. Yes. Thank you.

It has been 7 years since the residents of Mecosta County, MI,

were made aware of Nestle’s plan to pump over 250 million gallons

of spring water per year from a private hunting preserve, divert it

through a 12-mile pipeline that crosses streams and wetlands to its

plant, bottle it, and then truck it outside the Muskegon River watershed and the Great Lakes basin under the brand name Ice

Mountain.

As Nestle moved into Michigan to privatize our water for its own

profit, it announced that there would be no adverse resource impact to the natural resources. Then, in December 2000, about a

hundred citizens met, and Michigan Citizens for Water Conservation [MCWC], a nonprofit, grassroots corporation, was formed.

MCWC’s mission is and has been to conserve, preserve and protect the waters and natural resources and public trust in those resources of Michigan and the Great Lakes. MCWC has grown to

over 1,900 members and continues to work on water preservation

and conservation issues with other organizations.

MCWC began at the local level, asking our elected township officials to place a moratorium on the Nestle project to give us time

to investigate and evaluate a proposal of this magnitude for the potential impact on neighboring wells, lakes, streams, wetlands, wildlife and the community’s quality of life. Elected officials did not

hear or listen to our voices. This eventually led MCWC to three petition drives on rezoning ordinances, and to three courts, the

Mecosta County Circuit Court, the Michigan Court of Appeals and

the Michigan Supreme Court.

The findings of harm from Nestle’s pumping remain intact and

unaffected in all three courts. MCWC believed then, and it now has

been proven, that irreparable harm would occur to the waterways

due to pumping by Nestle at the Sanctuary Spring site. Nestle’s

pumping has caused harm to the Dead Stream by reducing the flow

and level, narrowing the stream, exposing mud flats and restricting

the enjoyment of many of the members of MCWC, and the public

for fishing, boating and kayaking on the stream. The findings of

fact are in the court records that Nestle’s pumping has created and

will continue into the future to create adverse impacts to riparian

uses and rights.

What will this ancient marsh watershed area, including Thompson Lake, be like for future generations? The lives of the 1,900

members, including the plaintiffs, those who live on the Tri-Lakes,

and mine, have changed since Nestle came to Michigan. The issue

has pitted neighbor against neighbor, friendships have been severed, and Nestle has violated our lives either directly or indirectly

with telephone polling, private investigators, the FBI coming to our

homes, and a potential Strategic Lawsuit Against Public Participation, a SLAPP suit, against my son.

MCWC has spent nearly a million dollars on the lawsuit against

Nestle. We continue to hold fundraisers, such as bake sales and garage sales, to continue to pay our legal and environmental bills.

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Nestle has affected families emotionally, physically, mentally and

financially. MCWC believes much of what it has done and stands

for is supported by a majority of Michigan citizens.

Michigan purports to be a good neighbor company to our area,

yet it continued to pump at high rates during a low period of low

participation and lower recharge. Even when bottom land and

other dramatic impacts and damages to the Dead Stream, Thompson Lake and wetlands have occurred, Nestle has continued to

pump. Nestle was cautioned by the trial judge that it proceed at

its own risk in building its plant in Stanwood. True to form, Nestle

pushed ahead in building its plant and continued to use the possible loss of jobs as ways to push through with its lobbyists in Lansing to get to the Governor and her staff and legislators to side

with an international company and not the citizens.

Water grabbers like Nestle undermine the interests of our sixthgeneration residents who live on the lakes and streams; the public

that fishes, boats, swims and enjoys our lakes and streams; farmers who rely on our groundwater; and industry and our economy

that are so dependent on our water. Water is our heritage and our

culture. It must be protected for our future generations. Thank you.

[The prepared statement of Ms. Swier follows:]

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Mr. KUCINICH. Thank you very much.

Mr. McCann.

STATEMENT OF BILL MCCANN

Mr. MCCANN. Thank you, Mr. Chairman.

Good afternoon. My name is Bill McCann, and I am a member

of the Board of Directors of Save Our Groundwater, which is located in Barrington, NH. I am a resident of the adjoining city of

Dover, the seventh oldest settlement in the United States, having

been settled in 1623. And I am also a member of the Conservation

Commission in Dover, as well as a former State representative.

Last spring I submitted to this committee a document entitled an

Analysis of the New Hampshire Department of Environmental

Services Reversal from its previous denials of the Large Groundwater Permit for USA Springs on behalf of both Save Our Groundwater and a spin-off group called Neighborhood Guardians. I trust

that at some point that will be entered into the record and the

members of the committee will have an opportunity to review it.

What transpired in Barrington was a private corporation coming

into the community with the goal of extracting over 400,000 gallons

of water a day. What transpired, and I can speak to this as someone who was involved when we passed New Hampshire’s law, was

the first implementation of RSA 485-C, which was New Hampshire’s Groundwater Protection Act. And this was by far the largest

withdrawal that came under the jurisdiction of this law. And I and

other citizens in the area watched very carefully to see what was

happening, because we thought the groundwater would be protected. What we saw was our State government and some Federal

agencies not implement what we had anticipated. We had expected

that there would be protections for the environment, protections for

prime wetlands, protections for the people who live in the area.

Barrington and Nottingham are located in the southeast portion

of New Hampshire equal distance from Concord and Portsmouth.

All of their households rely on private wells for all their potable

water. There is no town water system. These communities, like

Dover, are old. Both were settled around 1719 to 1722. They have

a rural nature. They try to work hard to protect their citizens. A

total of about 11,000 people live in the two communities. What

happened in this instance was a failure by State government and

Federal agencies to protect the groundwater.

This company, as I said, a privately held company whose business plan said they are going to bottle this water and ship it overseas—in other words, take it out of the aquifer, have no impact,

there will be no recharge in New Hampshire. It will have a definite

impact on the quality of surface waters. The Lamprey River, which

is nearby, is a federally protected water basin.

So we anticipated that between our State government and our

Federal Government that steps would be taken to protect. At first

it seemed to work. The permit was denied in 2003. It was denied

a second time later in 2003. But then they reapplied for a new permit at the end of 2003, and 6 months later, the permit was conditionally approved. I can tell you from firsthand experience, a lot of

people in the area of the southeastern portion of New Hampshire

became very disenfranchised with what government was doing to

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protect their precious water resource. They expect, and they still do

expect that the State government or the Federal Government or

some combination of the two will work to protect the aquifer and

the water resources in our State, and hopefully in other States, because I am sure, as we have heard from these other witnesses, we

are not the only ones impacted.

We are impacted because we don’t know right now when this

plant will start operation. There are people who are concerned that

when that plant starts to operate, they are going to get up in the

morning and find they don’t have water. They don’t have any reassurance from our Department of Environmental Services or from

the Army Corps of Engineers or any other Federal agency like EPA

that there is protection in place for this possibility. So they are

very concerned that this particular situation with USA Springs, as

I said, a privately held company, we don’t know what will transpire

once the plant is built. They are in the process of doing it. They

are building the plant even though they have not received final approvals on their wetlands permits and there are appeals pending.

The only thing they have used for their basis to continue moving

forward is they did get a Supreme Court case to go their way in

2006.

But when the State issued the permit, there were 10 conditions.

They haven’t been met yet. And I hope that this committee can

take a look at the situation and maybe be able to assist the people

of New Hampshire, as well as the rest of the country, from having

problems like this in the future. Thank you.

[The prepared statement of Mr. McCann follows:]

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Mr. KUCINICH. Thank you very much, Mr. McCann.

Ms. Paul.

STATEMENT OF HEIDI PAUL

Ms. PAUL. Hello, Chairman Kucinich. Thank you for the opportunity to appear before the subcommittee today. My name is Heidi

Paul. I am vice president of corporate affairs of Nestle Waters

North America.

Nestle Waters bottles and sells 15 regional brands of bottled

water, including Deer Park and Poland Spring. We employ 9,000

employees in North America, and we have plants in 21 communities in the United States and two in Canada. We have been invited today to testify about the environmental effects of bottled

water on groundwater and our operations in communities. Bottled

water represents 0.02 percent of groundwater used. As a company,

our use is sensitive to the environment and very efficient. We bottle a very healthy beverage. Not including bottled water, there are

close to 75,000 different types and sizes of containerized beverages

for sale in America. Most have calories, coloring, chemicals, alcohol

or caffeine. In 2006 alone, Americans avoided 356 billion calories

because they switched from soft drinks to bottled water.

Today Americans consume twice the amount of calories from beverages as they did a generation ago. Childhood obesity is up 370

percent in the last 30 years. And at this rate, 25 percent of our

children and 75 percent of our adults will be overweight or obese

by 2015. Part of the solution to this epidemic is to drink more

water, tap or bottled.

And bottled water has another important social role. For those

who have ever lived through a natural disaster or other interruption of water service, including the hurricanes in Florida, ice

storms in Maine, 9/11, Katrina, wildfires in California, floods in the

Midwest, bottled water is the safety net to the most critical need

of all, potable drinking water. Bottled water is also easier on the

environment than any of these other beverages. It uses less water,

and it uses less plastic.

And when it comes to collecting and bottling spring water, Nestle

Waters has an inherent interest in being a steward of a healthy environment at our spring sites. Our spring sources and the facilities

that use them represent our most valuable investment. And using

springs in a responsible manner today is the only way to ensure

our continued success. Moreover, we select only those sites with a

safe and sustainable yield, measuring any effects of our withdrawal, and understanding the cumulative impacts of all water

users and a shared supply.

It is appropriate that communities would have questions and

concerns about our water use and other impacts on the community’s quality of life, both in terms of opportunities, like jobs, and

challenges, like truck traffic. For example, in Michigan, there are

concerns about the water use impact. In fact, it went to court, as

Ms. Swier mentioned. Michigan courts ruled that bottled water is

a proper and beneficial use of water in Michigan, and the company

has the right to withdraw water at an appropriate rate determined

under the State’s reasonable use balancing test. Following the

Court of Appeals ruling, the company and project opponents enVerDate 11-MAY-2000 12:50 Jun 05, 2009 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 U:\DOCS\49776.TXT KATIE PsN: KATIE
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gaged in mediated negotiations to determine the allowable rate of

water use. Data reflects that this is a very safe level.

In McCloud, CA, we are in the middle of a comprehensive environmental and community-based regulatory process. In response to

concerns, we are engaged with environmental groups, concerned

citizens, together with third-party science experts in biology and

hydrology from the University of California, Davis. The goal is to

get increased information on the sustainable and safe water use

levels for the project. There remain open questions on the economic

benefits to the town and other impacts. There are materials provided that address some of these concerns. We plan to meet with

all stakeholders to discuss the economic reports that have just

come out, and gain a greater understanding of concerns and different points of view. We respect differences and try to address concerns through a variety of actions, but there are also times when

we have not been as successful. And we are learning in those

places and are open to work with stakeholders to do this in a better

way that is open and transparent.

We also have a responsibility to the environment. My company

has supported and will continue to support comprehensive sciencebased laws and policies regulating water withdrawals. The goals

must be long-term sustainability, fairness for all water users, openness to public input in order to provide a responsible framework for

decisionmaking. For example, in Maine, New Hampshire and

Michigan, we have supported recent legislation that meets these

standards. Thank you for your time and attention.

[The prepared statement of Ms. Paul follows:]

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Mr. KUCINICH. Thank you very much, Ms. Paul. I would like to

begin by asking Mr. McFarland—and I may ask the same question

of Ms. Swier—in McCloud, did Nestle hold any public hearings before you signed the contract with the municipality? And how many

public meetings has Nestle—before the contract was signed with

the municipality, and how many public meetings has Nestle held

since the signing of the contract?

Mr. MCFARLAND. There was one public meeting that the contract

was discussed. And that was the same public meeting that the contract was approved.

Mr. KUCINICH. So since the signing of the contract——

Mr. MCFARLAND. Since the signing of the contract, I believe that

Nestle has held two or three public meetings in the community.

And they have been—they have been designed to—they were public

relations events.

Mr. KUCINICH. What do you mean by that?

Mr. MCFARLAND. They touted all the benefits of the project and

didn’t really discuss any of the potential negative impacts.

Mr. KUCINICH. Did the general community have an opportunity

to participate in designing the plant?

Mr. MCFARLAND. None.

Mr. KUCINICH. Where it was located?

Mr. MCFARLAND. No.

Mr. KUCINICH. What about in Michigan?

Ms. SWIER. The same in Michigan.

Mr. KUCINICH. If you could turn the——

Ms. SWIER. I turned it on.

Mr. KUCINICH. Thank you.

Ms. Swier.

Ms. SWIER. Yes. No, in Michigan either.

Mr. KUCINICH. No to what? No participation in designing the

plant, where it was located?

Ms. SWIER. No.

Mr. KUCINICH. What about, did Nestle hold any public meetings

before the contract was signed with the municipality?

Ms. SWIER. We are not a municipality.

Mr. KUCINICH. With the area?

Ms. SWIER. Pardon?

Mr. KUCINICH. With your community. Was there any public—

were there any public meetings before the contract was signed?

Ms. SWIER. The contract was signed with a private property

owner.

Mr. KUCINICH. And were there any public meetings before that?

Ms. SWIER. I knew of two public meetings before. No, not before,

not before—I am sorry, not before we found out about Nestle coming into Mecosta.

Mr. KUCINICH. OK. And since the signing of the contract, were

there meetings?

Ms. SWIER. Yes, there have been meetings.

Mr. KUCINICH. And what was the nature of those meetings?

Ms. SWIER. The nature of the meetings were Nestle would get up

and speak to the audience of what a good neighbor they were—that

it was going to be and that there would be no adverse resource impact.

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Mr. KUCINICH. And were you there present to respond, or were

there people from the community that responded, or was it pretty

much accepted that what Nestle said was true?

Ms. SWIER. No, there were people at the meetings, like myself,

that were able to get up and ask questions.

Mr. KUCINICH. Mr. McCann, in your opinion, what would be the

effects upon your community of the proposed water bottling plant?

Mr. MCCANN. Well, clearly the major impact is the unknown factor of what will be the impact on everyone else in the area. You

are talking 307,000 gallons of water a day. You are looking at wells

that are—that are considerably less deep than what has been proposed. So the impact on those wells is the unknown. And those

were the questions that were asked at the public hearings that the

State had.

Mr. KUCINICH. Do you think it would be possible for the bottling

plant to exist without causing the kind of consequences you are

talking about?

Mr. MCCANN. I don’t believe so, no. I think that the situation is

such that, without a thorough scientific review ahead of time, but

here you have a company that owned the land and just decided this

is where we are going to do it.

Mr. KUCINICH. To your knowledge, has there been any thorough

scientific review?

Mr. MCCANN. There has been some scientific review done by both

the company and by one of the towns involved, and they aren’t in

agreement. The State becomes, I guess you would say, the mediator. And the final decision is the State’s of whether or not to grant

the permit.

Mr. KUCINICH. Does the company show an interest, Mr. McCann,

in being responsive to the community’s concerns?

Mr. MCCANN. No. Unfortunately, the company took the attitude

from day one that it was their land; they could do what they want.

They—beginning back in 2000, they actually went in and disturbed

some of the wetlands without a permit. This is the way it started.

And this is what had the people concerned. And their attitude

throughout the whole process has been, ‘‘You people shouldn’t be

out here bothering us. You shouldn’t be complaining. We are going

to provide jobs. We are going to provide—increase the tax base.’’ So

they had a very negative view of public input.

Mr. KUCINICH. Do you feel existing laws and regulations are sufficient to prevent those consequences even if the company is not

willing to prevent them on their own?

Mr. MCCANN. Well, as I said in my opening statement, I thought

what we had done in 1998 to protect the environment seemed on

the surface to work good, but in actual operation, no, I would say

now that the State and Federal laws failed.

Mr. KUCINICH. In your written testimony you criticize Governor

Lynch for his role in the permitting process. What should he have

done differently in your opinion?

Mr. MCCANN. I wouldn’t say I was being necessarily critical. I

just think that the reality is the Governor could have probably

come in sooner and maybe worked with EPA and the Army Corps

of Engineers instead of waiting until 2005. I think that what he

has tried to do was thwarted by what had been done by his predeVerDate 11-MAY-2000 12:50 Jun 05, 2009 Jkt 000000 PO 00000 Frm 00098 Fmt 6633 Sfmt 6633 U:\DOCS\49776.TXT KATIE PsN: KATIE
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cessor, who made sure that DES was, quoting as he said in one of

his speeches, ‘‘more business-friendly.’’ I think that the Governor

had some difficulties that were not his fault, but he also had a situation where I think he could have acted sooner, but he didn’t.

Mr. KUCINICH. You criticize the role of the Army Corps of Engineers. What should they have done differently?

Mr. MCCANN. As I understand the request from the Governor to

them, they were supposed to evaluate the information provided by

the applicant, USA Springs, the State and the scientific data that

I mentioned earlier that was provided by the Town of Nottingham

and the consultant Nottingham had. In reviewing what they issued

in August 2006, they basically took the information provided by the

applicant and accepted it as a fact.

Mr. KUCINICH. I am going to return to the questioning in a moment. The Chair is going to recognize the distinguished Member

from California, Congresswoman Diane Watson, for a round of

questions.

Congresswoman.

Ms. WATSON. I want to thank you, Mr. Chairman, for holding

what I feel is a very important meeting, and very sensitive and relevant to our climatic conditions and what is happening today. The

consumption of water is increasing at a rapid rate. And in the year

2002, Americans consumed 6,018 million gallons of bottled water.

And I think I did most of that consumption myself. The United

States, as well as the global population, is putting the strain on existing water supplies. And that is putting a strain on our existing

supplies of groundwater and surface water.

And the bottling industry is currently seeking to extract more

water from rural areas to meet this growing demand. And I understand some of the water companies are taking the water in their

city and bottling it and selling it in stores. And so there is a double

profit there. But I am very, very concerned in the way the process

is being done, not only our drinking water but our purification of

water. And you might be aware that along the southern coast of

California, we have a great deal of mercury in our water. And it

has contaminated the sea life and particularly gotten into our fish

life, particularly tuna, and we warn our citizens to not eat tuna off

the western coast of California.

So I understand that water that is extracted from ancient

sources, and once that water has been depleted, it is gone forever.

I missed the first part of the hearing, Mr. Chairman, but I don’t

know if the witnesses are from areas where there are ancient

sources of water. And as you were speaking, I thought maybe you

could tell us what we need to do to protect those sources and particularly now when we are in drought in California. And we have

our water up in the northern part of our State. And we had talked

at one time about a peripheral canal with the water from the north

in the deltas could come down to southern California into our

desert. But what can we do, and should we regulate the way

groundwater is extracted and how much could be extracted? And

should these fields be left alone for a while so groundwater could

accumulate? That would take millions of years in California because we don’t get much rain truly. But let me just start and go

96

down the panel. What would you have us do here in Washington

to protect that groundwater from ancient sources?

Let me start with Mr. McFarland.

Mr. MCFARLAND. Thank you very much. As I said in my opening

testimony——

Ms. WATSON. That I missed.

Mr. MCFARLAND. Yeah, one thing that I think that is really critical, and you talk about ancient groundwater, and one thing, I am

from Mount Shasta in far northern California, and I requested that

this committee, the subcommittee, encourage U.S. Geological Survey scientific inquiry to monitor and characterize Mount Shasta’s

ground and surface water resources. This is especially important in

the face of potential climate change impacts on California’s water

supply. So what it gets down to is good science. And I think that

we don’t really know whether the water that Nestle is proposing

to bottle in McCloud is ancient water, or if it is water from last

year, or if it is water from 10 years ago. And I think it really points

to the need for really good U.S. Geological Survey studies of these

aquifers before we start drawing them down.

Ms. WATSON. Thank you.

Mr. MCFARLAND. Thank you.

Ms. WATSON. Ms. Swier.

Ms. SWIER. I agree with Mr. McFarland on his proposals also.

Also, I think that there needs to be a protection of Federal and

State wetland laws from water extraction and diversion for export.

And all water bottlers must meet standards to be set by the courts

and the State law, including the no likely pollution impairment or

destruction standard of Michigan’s well-respected Michigan Environmental Protection Act, and an amendment to the Federal Water

Resource Development Act to provide interested citizens with the

right to enforce by citizen suits.

Ms. WATSON. Thank you.

Ms. SWIER. Thank you.

Ms. WATSON. Mr. McCann.

Mr. MCCANN. I would agree with what has been said earlier, and

I think that the important thing is the Federal Government’s role

should be to help bring, through the geological information that

has been talked about, the facts to the situation when we have developments proposed like was in New Hampshire or what has happened in Michigan or California. I found from my own experience

that we don’t know the science of the aquifers. And a consultant

for a company can come in and say, ‘‘Oh, there is tons of water

here; we don’t need to worry about the impact,’’ and there is no scientific backing for that. And I think the Federal Government’s role

would be to help provide that data so that both parties could sit

down and look at what an aquifer—what the impact may really be.

And so I would support what has been said by the two previous

speakers.

Ms. WATSON. Should that be the responsibility of EPA?

Mr. MCCANN. I would think EPA or the Department of Interior

or both. I mean, the Department of Interior has some of the records

because they have designated, like I mentioned in my testimony

earlier, one of the rivers that could be impacted in the New Hampshire case, the Lamprey River, is a wild and scenic river. It is so

97

designated by the Department of Interior. So I would think that a

combination of the Department of Interior and the EPA would

probably have the best data.

Ms. WATSON. Thank you.

Ms. Paul.

Ms. PAUL. I first want to clarify that we don’t use any ancient

waters that are not replenishable. One hundred percent of our

water use is from replenishable sources.

As far as the Federal role, I think we support the Linder bill,

which would say that we need a commission to look at water needs

for the next 50 years and what information can be provided, for example, from the USGS to inform the decisions at the State level.

Ms. WATSON. I kind of like that idea, Mr. Chairman. Maybe we

are looking at a different organization to develop standards, and let

States—and we have Cal. EPA in California. Water is our big

issue. And I think, State by State, we ought to require them to

have their own standards, their own organization that deals with

water, and plan for the next hundred years or so. Thank you so

much, panel. I appreciate your input.

Mr. KUCINICH. I thank the gentle lady for her questions.

To Ms. Paul, in your testimony, you represent yourself as a trustworthy steward of the environment. Absent a court order or other

legal requirement, if local people in a community bring to your attention significant adverse environmental impacts from your pumping operations, such as low stream flows, would your company be

willing to reduce or to stop pumping?

Ms. PAUL. We base all of our pumping decisions on the science

that says what is a sustainable use. So if the science was showing

it was not a sustainable use, yes, we would cut back.

Mr. KUCINICH. OK. Well, if that is the case, and I take it as you

say it is what you believe, this subcommittee has been informed

that your company continued to pump from its Stanwood plant in

Michigan in the summer months this year even when presented

with photographic evidence that clearly show the flow levels in the

stream-fed Dead Stream were dangerously low. We have a photo

that was supplied to us by attorneys for MCWC that appears to

show the Dead Stream living up to its name. Now, I would like you

to look at the picture there, which represents the low flow levels

of the Dead Stream. We have also been informed that while Nestle’s pumping may have been technically in compliance with a court

order, this court order was only in place pending remand to a trial

court after MCWC won its court case in order to determine safe

pumping levels. Now, did Nestle see these photos? Have you ever

seen these photos?

Ms. PAUL. I have never seen that photo.

Mr. KUCINICH. Have you ever seen any photos similar to that?

Have you seen any photos of the Dead Stream?

Ms. PAUL. Let me say, I think the question that is being raised

here is I think those might be the mud flats? Are those the mud

flats? Well, I guess I can’t—so this is what I know.

Mr. KUCINICH. This represents a picture taken of the Dead

Stream.

Ms. PAUL. There are low flows and high flows of water bodies

naturally occurring. And just because there is a low flow——

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Mr. KUCINICH. So you are maintaining that this was a naturally

occurring low flow. Is that your position?

Ms. PAUL. My position is that there is no harm to the environment, that there are naturally higher and lower flows, that this is

affected by dams built by beavers, by many things; that the mud

flats—when they show are a feature that has resulted from a

dredging, a historic dredging, and is the natural sediment coming

back to replace the dredged amount, the dredged soils.

Mr. KUCINICH. So again——

Ms. PAUL. So no harmful impact from our use. I do agree with

that statement.

Mr. KUCINICH. And that is based on science. Is that correct?

Ms. PAUL. Yes. Yes, it is.

Mr. KUCINICH. And so it is either—now, that position that you

have offered, is that the result of scientific studies that you have

had done, or is it only your study, or is it a consensus of a number

of scientific studies that have been done? And do you have those

studies to make them available to the committee?

Ms. PAUL. We do have studies, and we would be happy to make

them available.

Mr. KUCINICH. But is it one study that you have done or are

there other studies? Are there studies that are independent of your

studies?

Ms. PAUL. I know of no independent studies, but I am happy to

share our studies.

Mr. KUCINICH. Do you have any kind of knowledge of any scientific opinion that disagrees with your characterization?

Ms. PAUL. What I can say to that is there were in the original

lower court some models created of what would be, could be, the

impact of our use. That would be information that is different than

what we have seen when we have actually used the water source.

Mr. KUCINICH. Now, Ms. Paul, it is my understanding that the

source of the groundwater in McCloud is partly from a glacier. How

is Nestle going to address the restriction on water supply over the

next hundred years with climate change, which potentially will

change the amount of water flows from your source given that your

source is glacier-fed?

Ms. PAUL. We have a permitted amount that we are planning to

use. If there were any harm of that use, we would cut back. The

amount—I feel compelled to give a little history here, but maybe

I shouldn’t. McCloud came to us asking for our interest in coming

to the area to build a bottling water plant. The reason being, it was

a town, a lumber town built that was in decline. And today, in the

school built for 250, there are eight students. It is my understanding that there is not—they are not able to afford an ambulance

driver in the day. It is a community that is looking for opportunity,

for more jobs. They are looking for a light industry. They had a

water use of the lumber mill prior that they wanted to allow that

water to be put to good use. And the contract to which you referred

earlier, there were four meetings, public meetings on that contract.

Mr. KUCINICH. Has Nestle ever had any meetings with the Garrison Place Real Estate Investment Trust and/or Francesco Rotondo,

trustee, doing business as USA Springs, Inc.?

Ms. PAUL. No, not to my knowledge.

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Mr. KUCINICH. Do you know if there was any contact that any

of those entities have had with Nestle?

Ms. PAUL. Not to my knowledge.

Mr. KUCINICH. Do you know if Nestle either offered or received

a request to engage in a business transaction with any of those

entities——

Ms. PAUL. Not to my knowledge.

Mr. KUCINICH [continuing]. Relative to the BarringtonNottingham——

Ms. PAUL. I don’t believe we have any connection, any dialog.

Mr. KUCINICH. Has Nestle done any site characterization of that

area at any time or engaged in any discussions with any principal

or representative relative to the siting of a water bottling plant or

business transactions subsequent to that in New Hampshire?

Ms. PAUL. Anywhere in New Hampshire?

Mr. KUCINICH. In that area, at Nottingham and Barrington.

Ms. PAUL. Not to my knowledge.

Mr. KUCINICH. Any other place in New Hampshire?

Ms. PAUL. We look for spring sites in many States, and we have

likely looked in New Hampshire.

Mr. KUCINICH. But you don’t know; you have never heard of Mr.

Francesco Rotondo?

Ms. PAUL. No, I have had no contact with him.

Mr. KUCINICH. Or USA Springs, Inc.?

Ms. PAUL. I have heard of them. I don’t know them.

Mr. KUCINICH. Has it been Nestle’s practice over the period of

time, given the large share that you have in the bottled water market, to acquire bottling companies or bottling interests or to lease

or to purchase any assets that relate to water bottling and the acquisition of the water that the bottling plants use?

Ms. PAUL. Yes, we sometimes do buy those rights or the business

from others, yes.

Mr. KUCINICH. How many, in how many instances have you done

that? Is it rare, or is that the way your business grows?

Ms. PAUL. I would say it is neither rare nor how the business

grows, but it is a way; it is one of many ways. If you would like

me to find out the details of that, I would be happy to offer it in

written testimony.

Mr. KUCINICH. Yes, I would also like you to provide this committee, since you expressed that you didn’t know, any kinds of documents that you have relating directly or indirectly to the Nottingham-Barringtonsite that relates to the Garrison Place Real Estate

Investment Trust, Francesco Rotondo, USA Springs, any discussions, memoranda, e-mails, letters that relate to contact relative to

that site or to the principals who are involved in that site. If you

would do that, this committee would appreciate it.

Ms. PAUL. We will do that.

Mr. KUCINICH. Thank you very much. I want to—my time has

expired I have been informed. And the gentle lady from California

is recognized.

Ms. WATSON. I would like to give you my time, Mr. Chairman,

so you can continue your line of questioning.

Mr. KUCINICH. I want to thank the gentle lady.

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I want to go back to Mr. McCann. Mr. McCann, in your testimony you alleged specific failings in the enforcement of the New

Hampshire and the Federal laws with respect to the siting of a

water bottling plant in your community. To what do you attribute

these failings? Are the laws adequate, or do they clearly prescribe

the environmental safeguards that must be followed? And if it is

a question of inadequate enforcement, to what do you attribute this

laxity?

Mr. MCCANN. I think, as I said earlier, it is the law as written

perhaps can provide some public protection. The implementation

needs to be improved. The Federal role was, to put it mildly, I

think very vague to people in the first year or two of this project.

The environmental—Department of Environmental Services’ role

was to be fair. I think they were overwhelmed with the fact that

this company wanted to take this water out and didn’t appear to

have all the scientific data that DES had looked for and that people

like myself were asking for. So I think that it was, as I mentioned

in my earlier testimony, this was the first test of our State law. I

think the report card is still mixed. It is probably in the vicinity

of C-minus. And most of that might be as a result of poor administration by the agencies involved, not necessarily poor writing of the

law. But I don’t deny that there is perhaps room for improvement

in correcting what we have seen in the first 10 years of that law.

Mr. KUCINICH. I had asked Ms. Paul, whose presence we are

grateful for, a series of questions. Is there any question that I

should have asked that I didn’t ask relative to the issues that relate to the community that you are here on behalf of?

Mr. MCCANN. As far as the connection with the——

Mr. KUCINICH. I am just saying, are there any questions that I

did not ask that you think should have been asked?

Mr. MCCANN. I can’t think of any, Mr. Chairman. I think you did

a thorough job.

Mr. KUCINICH. OK. Let us go down the line here, starting with

Mr. McFarland. Water bottlers often choose relatively remote or

rural areas for bottling or pumping sites, and will often seek access

to watersources that are located in protected natural areas, areas

that are protected either because of their intrinsic natural value or

because of their relative ecological fragility. How do you think this

committee should weigh the economic value of the industry of the

water that is extracted and bottled versus the ecological value of

protecting the delicate balance of these areas?

Mr. MCFARLAND. I think they should use good economic analysis

and look at the true costs versus benefits of all of the resources in

the area. And you know, I think that the subcommittee understands that there is economic value to the water for downstream

uses. Not only is it of economic value to—in terms of commerce, direct commerce. So I think that the science of economics today looks

at the other value of those resources aside from just the pure, you

know, dollar value of the resource put into a bottle.

Mr. KUCINICH. Thank you.

Ms. Swier.

Ms. SWIER. Yes. I am from Michigan, which you know, and we

are living—I live in an economically depressed area. And I do feel

that we have to look at the economic picture. And when Nestle

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came into our area, that was one of the major draws that Nestle

had said of coming into Mecosta County. But we also, as residents

of my area, this is our livelihood. I am surrounded by lakes. I happen to live on a lake myself. And this is one of—the water is our

heritage. And I feel that it needs to take into effect what the effect

is going to be in the area. And with more scientific data available,

MCWC has hired a hydrologist. And he is continually looking at

what the harm is to our area, to our natural resources, which a

good one was, you know, the one that you had there. And I live just

5 miles from the Dead Stream.

Mr. KUCINICH. Could that have been—that low water level, could

that have been caused by beavers?

Ms. SWIER. There had been beavers there on and off for years.

The people who live on the Dead Stream have never——

Mr. KUCINICH. Is that a yes or a no? I mean, could that have

been caused by beavers?

Ms. SWIER. Yes. Yes, it can be caused by beavers.

Mr. KUCINICH. And in this case, do you think that it was caused

by beavers?

Ms. SWIER. I can’t answer that. I do not know.

Mr. KUCINICH. OK. Thank you.

Mr. McCann, do you want to comment as to the fact that these

water bottlers are choosing relatively remote and rural areas for

bottling or pumping sites and often seek access to water sources

that are located in protected natural areas? And how do you think

this committee should weigh the economic value of the industry

versus the ecological value of protecting the delicate balance in

these areas and also the access to water for civilian populations?

Mr. MCCANN. I think that, clearly in the past, in the instance especially in Barrington and Nottingham, but I read about, you

know, other companies, obviously the economic value of a proposed

development is part of the process to quote-unquote sell it to the

community. And if a community has had hard economic times, it

is clearly one mechanism they can use to try to come in.

I think the Federal legislation and the ideas that have been put

forward by Mr. McFarland make sense. I think we need to have a

level playing field, which means we try to, as I said earlier, balance

the scientific data, but we also work to try to have equal opportunity for development but also at the same time recognizing, as

you said, that we have a very delicate balance. And if there is a

reason for the government to become more involved, I think it is

to protect the environment and to ensure that a well-regulated industry is working. But it shouldn’t be at the deprivation of the environment or the people who live in the community.

Mr. KUCINICH. Out of fairness, Ms. Paul, do you want to respond?

Ms. PAUL. Yes. Thank you. Everything is made with water. Everything. In fact, our bottle—the biggest user of water is the plastic

bottle—which is the lightest weight plastic bottle on the market, as

I mentioned; it is less than a half an ounce. So think of anything

made of plastic that is greater than half an ounce; it is made with

more water. We are a very visible user of water, but we are not

a very large user of water on the global scale or on the U.S. scale

or on our region’s scale.

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On a particular site, we do two things. We pick sites where our

use can be sustainable, and then we monitor that use.

Mr. KUCINICH. What about the environmental effects? Do you

consider those at all times, the ecological effects of what you do?

Ms. PAUL. Yes, we do. I think we are a model water user.

Mr. KUCINICH. Thank you very much.

I want to thank the members of the panel for responding.

I am going to recognize Mr. Issa. And I want to say that our

clock for some reason always stays on green.

Mr. ISSA. Which is looking better all the time right now.

Mr. KUCINICH. Which is good. OK.

Mr. ISSA. Thank you, Mr. Chairman.

A lot of the questions that needed to be asked, you asked. And

so I will try to do followups mostly.

Ms. Paul, do you produce, does Nestle produce beer?

Ms. PAUL. No.

Mr. ISSA. Do you produce soft drinks?

Ms. PAUL. No. Well, define soft drinks. We do have——

Mr. ISSA. Pepsi, Coca-Cola type products?

Ms. PAUL. No.

Mr. ISSA. OK. Now are these figures in your estimation accurate,

that bottled water consumes about 1.3 gallons per gallon of water

delivered, while soft drinks consume about 1.7 gallons per gallon

delivered, and beer consumes about 2.1 gallons for every gallon delivered? Do those figures ring a bell to you from your history?

Ms. PAUL. My history would say that our company uses 1.3; that

carbonated soft drinks, for just processing, uses 3, not counting the

water to process the ingredients or the water to grow the ingredients; and beer is more like 9 gallons, not counting the growing and

the processing of the ingredients.

Mr. ISSA. Right. Because they have to boil the hops and all

the——

Ms. PAUL. It is distillation.

Mr. ISSA. I apologize for the low figures. I chose the lowest of all

of them I could get just because I love Anheuser-Busch, and I am

a beer drinker from time to time. So I didn’t want to do anything

adverse.

Mr. KUCINICH. Let the record stipulate.

Mr. ISSA. But as a Californian, I love my wine, too, let us not

kid that. But I am a Californian. Let me understand this. If you

are a typical crop producer, for every gallon of water you pump

out—let me rephrase that—for every 10 gallons you pump out, 8

gallons are going to evaporate. Basically, nothing is going to deplete the groundwater table as much as, for example, our rice production in northern California. By definition, we are spraying

water out and asking it to please evaporate in a 100-degree Sacramento day. Is there anyone—Mr. McFarland, you know, you have

seen that. That is essentially how we grow rice is you spread water

over it and ask it to please evaporate.

Mr. MCFARLAND. Absolutely.

Mr. ISSA. So although today we are talking about the bottled

water industry, and clearly you concentrate your taking from one

area, wherever your plant is, we have in California and around the

country, but particularly California where we don’t have the Great

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Lakes, which my understanding the Great Lakes are basically a

river with some big puddles in them, that every bit of water—if we

took every bit of water out of the Great Lakes today, in a matter

of 2 years, they would essentially refill. I know there is a gentleman shaking his head no, but I am a Clevelander. I remember

when the Great Lakes were dead, and it took less than a decade

for them to come back to life because they flow completely through

every couple of years. We don’t have that in California.

So, Mr. McFarland, excluding the fact that I clearly understand

how you are personally affected and your water table is affected,

don’t we have a national problem of groundwater, ground table, aquifer management? Wouldn’t you say that you are picking out this

particular point because it is in your backyard, but you would

agree that we have throughout California and the Nation a question of, how are we managing groundwater?

Mr. MCFARLAND. Yes.

Mr. ISSA. And I think although you are not in agriculture, you

shook your head yes like most of us as Californians, we understand

that agriculture, clearly needed, is the biggest consumer, because

of the fact that we spill it on the ground, of water that doesn’t get

back into the water table.

Mr. MCFARLAND. Absolutely. And I believe that if Nestle was

paying as much in McCloud as the rice farmers pay for their water

in Colusa, that there would be less opposition to it in McCloud.

Mr. ISSA. Well, and I am a businessman, so I understand a problem is something money can’t solve. It does sound like money could

solve this one.

Mr. MCFARLAND. It could solve part of the problem here. Part of

the big problem here is that this is an outrageously egregious contract. It is very unfair to the community of McCloud.

Mr. ISSA. The price.

Mr. MCFARLAND. The price.

Mr. ISSA. The price they are paying for the water.

Mr. MCFARLAND. They are stealing it.

Mr. ISSA. As a southern Californian, remember, I opened up with

all northern Californians think southern California steals. But I

get your point that it is a question of how much money is being

spent for the resource that is being taken from your region. I am

a Federalist. I believe the Federal Government only has the right

to do what it implicitly has the right to do. Other than ensuring

Federal access to navigable waterways, the national fisheries and

the Clean Water Act, other than those, do any of you know a legitimate existing Federal hook that we can take? I mean, and those

three are big. We do have a right to make sure that Nestle or anyone else is not taking water in a way that pollutes somebody else’s

water. We have to make sure that the 0.3 gallons that don’t go into

the bottle don’t end up being backflushed in some way. And we all

know some of the history of that. But are there any other hooks

that we should really be aware of that exist today beyond—because

we primarily make sure that agencies are doing their job. That is

one of the biggest things we do on this committee. So are those

three the big three that we should be looking at as we are going

through this problem not just of a particular bottling operation or

two, but groundwater and safe drinking water?

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Mr. MCFARLAND. Boy, that is a question that is out of my league.

Mr. ISSA. But those thing three ring a bill, and you are

comfortable——

Mr. MCFARLAND. Yeah, the navigable waterways thing, that

comes up as definitely potentially applicable here.

Mr. ISSA. We can certainly make sure the Corps of Engineers ensured that not so much water was taken from any source as to adversely affect navigable waterways.

Any of the rest of you have anything I’ve missed? Because when

this hearing is over and any subsequent hearings, that’s what we

have to look at, is can we make agencies do their jobs better. And

something the chairman and I try to do whenever possible is make

the agencies do their jobs without legislation.

Ms. Paul, you know, you’re obviously the subject of a lot of this

because of your company’s operations. You mentioned your stewardship of the environment and how you make sure—or you said

that what you take is sustainable. In the case of the Mount Shasta

operation, could you go through the sustainability, in your company’s opinion, the environmental impact and how you reached the

decision for how much you can, individually and with the other

companies already operating there, collectively take out of the aquifer or the groundwater?

Ms. PAUL. Yes. We’re still in the middle of that regulatory process. We signed the contract, which we actually pay more for the

water than any other users. And it is reliant on meeting the terms

of CEQA. CEQA is involved in the environmental impact statement.

We have done the science to look at what our impact would be;

and, in this case, it is a unique situation in the sense that we could

take the amount of water that we’d use at peak out of the system

to see the impact. You can’t usually do that. You usually have to

model it. But because of the way the springs come together and

then we could divert one of the springs and just have the amount

left——

Mr. ISSA. You could test the theory.

Ms. PAUL. We could test the theory. That said, we have heard

from the town and from environmental groups that they want more

information. And we are in a process—we’re sitting down with environmental groups, concerned citizens and a third-party hydrologist and biologists from UC Davis at the recommendation of environmental groups; and we’re going through what more science

would they be comfortable with, that we’d be comfortable with to

get more information.

Mr. ISSA. Excellent.

Thank you, Mr. Chairman. I think this takes us a long way with

this panel. I appreciate your calling this hearing.

Mr. KUCINICH. I thank the gentleman from California for his participation as always. I know that you have a markup and you’re

trying to do double duty here. I appreciate you being here.

The gentlelady from California has informed me she doesn’t have

any other questions of this panel. Nor do I. I want to thank each

member of the panel for your participation. This committee will

continue to look at the issues that have arisen as a result of your

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testimony, and we reserve the right to submit additional questions

in writing.

And I appreciate Ms. Paul’s presence here; and we would ask

that you’d respond, you know, to the committee’s inquiries as you

indicated you would.

So I’m going to dismiss the first panel, and we’re going to call

the second panel to come up. Thank you again.

Will the second panel please come forward.

I want to thank all of the members of the first panel again. We’re

going to try to get this second panel started in an expeditious manner, and I would ask that the witnesses be seated.

I’m going to do some introductions.

We have here Ms. Wenonah Hauter, who is the executive director of Food & Water Watch, an organization dedicated to educating

policymakers and the public about food safety, agriculture, environmental issues and water rights.

From 1997 to 2005, Ms. Hauter served as director of Public Citizens Energy and Environmental Program, which focused on water,

food and energy policy. Before that, she was environmental policy

director for Citizen Action and worked on sustainable energy campaigns for the Union of Concerned Scientists.

Next, Mr. David Hyndman. Mr. Hyndman is professor of geological sciences at Michigan State University where he studies the

physical and chemical processes that influence groundwater flow.

Professor Hyndman’s research also examines how land use changes

in regional watersheds affect ecological health. For the past 10

years, Professor Hyndman has been associate editor of the journal

Groundwater, was association editor of the journal Water Resources Research for 5 years and is published widely on

hydrological issues.

Professor Noah Hall is a professor at Wayne State University

Law School in Detroit, MI, where he teaches environmental law

and water law. Before joining the Wayne State faculty, Professor

Hall taught at the University of Michigan Law School and was an

attorney with the National Wildlife Federation where he managed

the Great Lakes Water Resources Program. Professor Hall also

worked in private practice in Minnesota for several years and

clerked for the Honorable Kathleen A. Blatz, Chief Justice of the

Minnesota Supreme Court.

Mr. Joseph Doss is president and CEO of the International Bottled Water Association in Alexandria, VA. The IBWA was founded

in 1958 and is the trade association representing the bottled water

industry both internationally and domestically. Mr. Doss has extensive experience in association management, food and drug matters,

governmental affairs, public relations and legal issues. Before joining the IBWA, Mr. Doss was the director of Public Affairs At the

Consumer Healthcare Products Association from 1997 to 1999.

Mr. James Wilfong is an entrepreneur, educator and public servant. He is executive director of H20 for ME, a ground water advocacy group. He also served as a member of the Maine Legislature

and as an assistant administrator for the Office of International

Trade at the Small Business Association during the Clinton administration. Mr. Wilfong is co-founder of several enterprises, including

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Atomic Ski USA and Innovative Applied Sciences, a software development company of which he is the chairman.

I want to thank the members of the panel for being here. It is

the policy of the Committee on Oversight and Government Reform

to swear in all the witnesses before they testify. I’d ask each of you

to rise—all of you to rise and raise your right hands.

[Witnesses sworn.]

Mr. KUCINICH. Thank you very much. Let the record reflect that

the witnesses have answered in the affirmative.

As with the first panel, I ask that the witnesses give an oral

summary of his or her testimony and to keep this summary under

5 minutes in duration. Bear in mind the complete written statement will be included in the hearing record.

I’d like to begin with Ms. Hauter.

Thank you. You may proceed.

STATEMENTS OF WENONAH HAUTER, EXECUTIVE DIRECTOR,

FOOD & WATER WATCH; DAVID W. HYNDMAN, DEPARTMENT

OF GEOLOGICAL SCIENCES, MICHIGAN STATE UNIVERSITY;

NOAH D. HALL, WAYNE STATE UNIVERSITY LAW SCHOOL; JOSEPH K. DOSS, PRESIDENT AND CEO, INTERNATIONAL BOTTLED WATER ASSOCIATION; AND JAMES WILFONG, EXECUTIVE DIRECTOR, H20 FOR ME

STATEMENT OF WENONAH HAUTER

Ms. HAUTER. Good afternoon, Chairman Kucinich and Congresswoman Watson. Thank you for the opportunity to testify today.

My organization, Food & Water Watch, is very concerned about

the commodification of water, which is a resource owned by no one

and needed by everyone. In setting the context for the discussion

of the bottled water industry’s mining in rural communities, it is

important to acknowledge both the industry’s explosive growth over

the last 20 years and its profit—that its profitability is based on

selling the myth that bottled water is some how safer and better

than tap water.

The truth is that bottled water is generally no cleaner, no safer

or healthier than tap water and that the Federal Government requires far more rigorous and frequent testing and monitoring of

municipal drinking water. Almost half of all bottled water is nothing more than reprocessed tap water. The FDA only requires that

companies test four empty bottles once every 3 months for bacterial

contamination, and they must test a sample of water after filtration and before bottling for bacteria once a week.

In contrast, the EPA requires that public water systems serving

more than one million residents test water 300 times per month

and utilities serving more than 3 million people must collect and

test 480 samples monthly.

Now I raise this issue because the lax regulation of the bottled

water industry is one of the things that helps make it profitable,

along with the little that they pay to access water.

A former chairman of Perrier was quoted as saying, ‘‘it struck me

that all you had to do is take the water out of the ground and then

sell it for more than the price of wine, milk or, for that matter, oil.’’

And it is true. Bottled water costs more than gasoline or the comVerDate 11-MAY-2000 12:50 Jun 05, 2009 Jkt 000000 PO 00000 Frm 00110 Fmt 6633 Sfmt 6633 U:\DOCS\49776.TXT KATIE PsN: KATIE
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panies charge about $1.50 for a 20-ounce bottle of water which penciled out to more than $9 a gallon. That profit must be measured

against the mere cents that it costs them to bottle the water.

But those few cents are only the company’s internal costs, the

ones they have to pay. The mining of water does not include the

external economic, social and environmental costs to rural communities and society in general, such as the loss of groundwater, toxic

emissions from plastic production and disposal, air pollution and

damage to roads and other local infrastructure from transporting

the products.

For instance, plastic bottle production in the United States annually requires more than 1.5 million barrels of oil, enough to fuel

100,000 cars. Worldwide bottling of water uses about 2.7 million

tons of plastic. And after the production of billions of plastic bottles

and the national and international travel of bottled water, billions

of those empty bottles remain. Eighty-six percent of empty plastic

water bottles in the U.S. land in the garbage instead of being recycled.

Besides the cost to the environment of the plastic bottles, water

mining could have long-lasting effects on the rural communities

where it is mined. When the flows and levels of a region’s springs,

wetlands, lakes, streams and rivers are materially altered because

of the extraction for bottling, the entire local and even regional environment suffers; and this extends to the activities that depend on

water: agriculture, the individuals in the community, businesses,

tourism and recreation.

And groundwater is a fragile resource. Our Nation’s groundwater

reserve is not a single vast pool of underground water but is contained within a variety of aquifer systems that cross political lines

at county, State and international boundaries.

Groundwater management decisions in the United States are

made at local level by a State municipality or special district

formed for groundwater management. The monitoring of groundwater reserves is uneven around the country and often the amount

of water available in an aquifer is unknown because of lack of data

collection and the analysis that is needed to support informed decisionmaking about groundwater.

Some communities across the country developed water management plans that take into account such issues as population and

climate change, including drought. The people and businesses living and operating there have to live within the rules set forth in

these plans, but often bottling companies get a nearly free pass,

even though they’re permanently removing water from a community’s aquifer. Indeed, in McLeod, CA, which we discussed earlier,

they plan to extract about 500 million gallons of water annually;

and it appears that the contract would give the company preference

over the town’s ratepayers.

What is more, the local water district bears all the responsibility

for the well-being of the springs and the water infrastructure. The

ongoing extraction of water from cities and rural areas to be bottled and sold——

Mr. KUCINICH. I’m going to ask the gentlelady to wrap it up because your time has expired, and I just want to try to keep to the

5-minute rule. Thank you.

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Ms. HAUTER. So our recommendation is that the Federal Government should, of course, strengthen bottled water quality regulations. But, just as importantly, we believe that there must be some

kind of regulation or standard at State and local levels that addresses how much water bottling companies can extract from State.

Federal funding should be provided to collect adequate data about

the health and quantity of groundwater, and this data needs to be

properly analyzed.

Mr. KUCINICH. Thank you. I want to thank you for your excellent

testimony.

[The prepared statement of Ms. Hauter follows:]

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Mr. KUCINICH. I just want every member of the panel to know

that your statement, the entire statement, will be included in the

record of the hearing. So, you know, I know, having been on the

other side of a panel and testifying, that the tendency is to try to

get in every word. That’s where I learned how to talk fast. But you

can just present a good, solid 5 minutes, and we’ll include everything in the record, and I think during the Q&A we’ll probably

have an opportunity to cover it all.

So, with that, again I want to thank Ms. Hauter for her testimony and proceed to Professor Hyndman.

STATEMENT OF DAVID W. HYNDMAN

Mr. HYNDMAN. Thank you, Chairman Kucinich and members of

the subcommittee, for inviting me to testify today.

Mr. KUCINICH. Could you move a little bit closer to the mic.

Mr. HYNDMAN. Certainly, Sir.

In addition to my research in groundwater hydrology and surface

water hydrology that you mentioned, I’ve also been an expert witness in several cases involving groundwater; and those have included several that relate to the bottled water industry. And in all

cases so far, I have been retained by those opposed to the bottled

water industry. However, today I’ve been asked to come here on my

own behalf and give general scientific opinions about the impact of

the bottled water industry on surface water, groundwater and riparian areas. And in addition to that testimony, I’ll briefly discuss

some issues related to the Food and Drug Administration’s definition of spring water, which I think relates to many of the issues

where bottled water companies are placing their plants in the

headwater of stream systems.

The issues that I see with the FDA definition is there is little to

distinguish spring water from diffuse groundwater seepage into

stream systems. In addition, if we look at what is happening in

groundwater systems, an area that could be called a spring is really a focused area where water is coming out of the subsurface,

whereas most groundwater is flowing in in a diffused sense along

the surface water systems; And that is where I think some of the

confusion comes to play.

The FDA has a specific definition that says if the groundwater

is not extracted directly from the orifice of the spring, then it can

be tapped by a bore hole that is in connection with the same formation and that connection has to be shown in a hydrogeologically scientific fashion.

The issue with that specific clause leads bottle water plants to

often be put in headwaters of streams. Because, in those areas, it

is really easy to demonstrate that connection because there is very

little flow coming into the system other than what is coming in via

some localized areas. The problem with that is that these headwater systems are also environmentally sensitive, and they are

areas where the consequences and impacts of pumping may be the

largest.

If you separate these out into really groundwater and surface

water issues and you look at what the previous panelists have already mentioned, most of the impacts that you heard were related

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to surface water and that is because that’s where a lot of the environmental concern is.

You also heard a little bit about groundwater concerns. If there

are people living in the vicinity of high capacity wells, the water

table or the level of water in the subsurface is declined in the vicinity of that well, and that can extend over a large area. So there

are potential impacts to localized groundwater users.

I’ll focus most of my testimony, however, on the surface water

issues because that is where, again, the most environmental harm

is. If you pump shallow groundwater effectively, there is a one-toone relationship between how much is pumped and the reduction

in stream flow in the nearby areas. So high capacity wells can, as

a result of that, cause large percentage declines in the flow of surface water.

When you reduce surface water flow, by the nature of doing that

you’re also reducing the level of streams. If you reduce the level of

streams, there is environmental consequences, especially if there

are riparian wetlands right in the vicinity of that. Some of the concerns that have been expressed in cases I’ve been involved are reduced navigability, degraded aesthetic quality and impairment of

the stream for aquatic organisms and fish. In addition, the pumping can alter the water temperature, which can also be a problem

for the ecological systems.

Finally, some of the most sensitive systems are wetland and lake

systems where if you lower the groundwater level below these, if

they’re connected to groundwater, the level of the wetlands will

also decline.

The seasonal effects are worse. If you look at pumping during the

middle of the growing season, the declines will be more significant.

They are even more significant if you’re in a drought period. So all

of these things are on top of the natural variability in a system.

In terms of recommendations, I’d recommend additional funding

in areas of hydrologic science. Several people have mentioned this

already in terms of examining new mapping approaches and new

approaches that characterize what the impacts are of not only bottled water pumping but any broad level of pumping and climate

change and land use change.

Thank you for the opportunity to speak to you today.

Mr. KUCINICH. I thank the gentleman.

[The prepared statement of Mr. Hyndman follows:]

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Mr. KUCINICH. Professor Hall.

STATEMENT OF NOAH D. HALL

Mr. HALL. Thank you, Mr. Chairman and members of the committee.

I’m going to very briefly summarize the applicable State and

Federal law that deals with the extraction and pumping of groundwater both for bottled water and for other water uses.

Water use and extraction, both groundwater and surface water,

is primarily the domain of State law. The rules governing how

much water you can pump, from what resource, how much impacts

are allowed are typically addressed under State law.

State law comes at groundwater pumping from two directions.

There is background common law principles that are intended to

primarily address conflicts between water users of a shared water

resource. The original rule that was used here was what was called

a rule of capture. What this meant was basically if you could pump

the water, it is yours. It would be no different from me turning to

Mr. Doss on my left here, grabbing his water, drinking it and saying I got it and now it is mine. So, in effect, the rule of capture

is really no rule at all.

That rule has not remained in almost any State. The one exception being Texas, which I’ll come back to in a moment. But in almost every other State, the rule of capture, we’ve moved beyond

that, and we’ve evolved toward a more correlative rights approach

to share groundwater resources. What this means is that a landowner has the right to the reasonable use of the groundwater below

his property unless that reasonable use interferes with the neighboring landowner’s reasonable use of the same groundwater.

And when reasonable uses of shared waters are in conflict or

interfere with each other, courts reconcile those conflicts using a

variety of equitable principles, including opportunities for water

conservation, sharing, reduction of need, reasonableness of use, economic values, social harms, environmental impacts, etc.

Most recently, we’ve seen this shared correlative rights approach

to groundwater use extend to the types of conflicts that Professor

Hyndman just mentioned where groundwater withdrawals impact

surface waters and courts have begun applying the same principles: shared, reasonable use, correlative rights, equitable remedies to resolve groundwater and surface water conflicts.

The common law, however, is not perfect. It has some serious

shortcomings. Primary among those, I believe, are, first of all, the

cost of litigation, which several members of the first panel can attest to firsthand. Common law litigation tends to be very expensive

and requires the use of numerous expert testimony.

Second, the common law does a very good job of protecting

shared rights and groundwater, but it doesn’t do such a great job

of ensuring environmental protection of public resources from

water pumping, and this is where State statutes have come in.

Many—I’d say most, but not all, State have in place some type of

regulatory statute scheme to ensure that water withdrawals don’t

have unreasonable harm on natural resources, aquatic life, fisheries, wetlands, etc. Some of these systems and programs work

quite well. Some of them don’t. There is tremendous diversity both

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in how strict the standards are, how well they are enforced and in

the ability for citizens to avail themselves of remedies under the

statutes.

Beyond State law, I want to briefly mention the Federal role in

all of this. The Federal Government doesn’t regulate water use,

and for the Federal Government to take on regulation of water use

would be an undertaking that would make regulation of carbon

emissions seem modest in comparison.

But the Federal Government has been a driver of water use. The

Food and Drug Administration [FDA], for over a decade through its

source identity regulations have required that if water bottlers

want to label their bottled water as spring water—and spring

water seems to be the label that consumers prefer over any other—

then, as Dr. Hyndman said, it requires the water bottlers to go to

groundwater that has an immediate and direct connection to a natural spring.

Inadvertently, this puts tremendous pressure on the water resources that are least able to withstand groundwater pumping

pressures. Bottled water is not a large user of groundwater nationwide or on a macro scale. But when water bottlers, to comply with

the FDA regulations, go into the headwaters of a relatively small

spring system, even a modest size withdrawal, a few hundred thousand gallons per day, which is modest in this area, can have a significant environmental impact.

So I’d offer two brief recommendations for the committee’s consideration. The first is, I would echo the recommendations of several of the panelists before me that we give the USGS, U.S. Geological Survey, increased support and resources to conduct extensive groundwater mapping, water use data analysis, investigative

studies. The USGS data is critically important to both State and

private decisionmakers in this area.

Second, I would encourage this committee to exercise its oversight jurisdiction and powers to work collaboratively with the FDA

and other stakeholders involved in this issue to reform and revise

the FDA’s bottled water identity rules to basically allow water

bottlers to continue to identify their product in a way the consumers demand and deserve but doesn’t put pressure on our most vulnerable springs.

Mr. KUCINICH. I thank the gentleman for his testimony, and I

will note that you presented this committee with an extensive preparation. And I think the Members are grateful to you and to all of

those who have presented this voluminous testimony.

[The prepared statement of Mr. Hall follows:]

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Mr. KUCINICH. So, Mr. Doss, please continue.

STATEMENT OF JOSEPH K. DOSS

Mr. DOSS. Good afternoon, Chairman Kucinich. And Congresswoman Watson I think has just left.

My name is Joe Doss, and I am president and CEO of the International Bottled Water Association. We appreciate this opportunity

to discuss environmental issues associated with the bottled water

industry’s extraction of groundwater.

Groundwater, particularly spring water, is the primary water

source for bottled water products sold in the United States. Because a long-term, sustainable supply of high-quality water is the

foundation and lifeblood of bottled water companies, IBWA members recognize the critical importance of environmental conservation and stewardship of all water resources. In particular, IBWA

supports groundwater management laws that are comprehensive,

science-based, multijurisdictional, treat all users equitably and balance the rights of current users and the future needs to protect the

sustainable resource.

The bottled water industry uses only minimal amounts of

groundwater to produce this important consumer product and does

so with great efficiency. According to a 2005 study by the Drinking

Water Research Foundation, annual bottled water production accounts for less than 2/100 of the 1 percent of the total groundwater

withdrawn in the United States each year.

The two largest users we’ve heard before of groundwater in the

United States are irrigation and public water systems. According

to the 2004 U.S. Geological Survey, irrigation accounted for 68 percent of the total groundwater withdrawn, while public water systems was the second largest user at 20 percent.

It is important to note that an aquifer or other groundwater

source does not know the difference between water withdrawn to

produce bottled water and water withdrawn to make other beverages or consumer products. Although bottled water is currently

the second most consumed beverage in the United States, its consumption volume is about half of that of carbonated soft drinks and

only slightly ahead of milk and beer. All such beverage products

fundamentally have a high water content. Bottled water is just one

of countless products and enterprises that use water; and to single

out any one product or industry, particularly one that accounts for

only 0.02 percent of all withdrawals, will not be effective in sustaining groundwater resources.

The States have a strong interest in regulating and ensuring efficient use of water resources and must effectively manage them to

ensure that this important resource will be sustainable for all

users. IBWA believes that in order to ensure sustainable water resources, a comprehensive management approach must be taken. To

this end, the bottled water industry has been a strong and vocal

supporter of comprehensive State groundwater management legislation that requires the permitting of large groundwater withdrawals and ensures a science-based approach to evaluating potential

impacts of all users.

For example, we recently supported the enactment of such laws

in Maine, Michigan and New Hampshire. Based on our experiences

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in the State, it is very clear to IBWA that there is a need for more

and better data on the aquifers throughout the United States in

order to assist State authorities in managing available water resources. We think that this is an area where the Federal Government can play an important role. As a result, IBWA supports the

enactment of H.R. 135 which would establish the 21st Century

Water Commission to make recommendations on how to ensure

comprehensive water resource strategy in the United States.

The Commission would be authorized to, one, project U.S. future

water supply and demand; two, study current water management

programs of Federal, intrastate, State and local agencies; and,

three, consult with representatives of such agencies to develop recommendations for a comprehensive water strategy.

Bottled water is comprehensively regulated as a processed food

product by the FDA. By law, FDA’s bottled water regulations must

be as stringent and protective of the public health as EPA’s standards for public drinking water systems.

Under FDA regulations, there are two fundamentally distinct

types of bottled water products. The first type is natural water,

such as Artesian water, mineral water and spring water, which all

have groundwater sources. The second type is processed water,

such as purified water, which could be from a groundwater or a

municipal water source. Bottled water is sold in small containers

at retail locations and restaurants and is also delivered to homes

and offices in three- and five-gallon bottles used with water coolers.

In summary, Mr. Chairman, bottled water is a safe, healthy, convenient food product and is an extremely small user of groundwater when compared with all other users. The bottled water industry is a conscientious and dedicated steward of the environment

which has been demonstrated by its active pursuit of responsible

groundwater management policies at both the Federal and State

level.

IBWA supports groundwater management policies, laws and regulations that are comprehensive, science-based, multijurisdictional,

treat all users equitably and balances the rights of current users

and the future needs to provide a sustainable resource.

Thank you for considering our thoughts, and IBWA stands ready

to assist the committee and the subcommittee as it considers this

very important issue.

Mr. KUCINICH. I thank the gentleman.

[The prepared statement of Mr. Doss follows:]

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Mr. KUCINICH. Mr. Wilfong.

STATEMENT OF JAMES WILFONG

Mr. WILFONG. Thank you, Chairman Kucinich. Thank you very

much for inviting to testify here today on this very important topic.

I’m from a little town in the western mountains of Maine called

Stow. Stow is located in a very freshwater rich area backed up

against the State of New Hampshire in the White Mountain National Forest.

In 2003, several citizens of this region, including myself, were

concerned about the large-scale extraction that was taking place in

the Fryeburg, ME, section of the Saco River Sand and Gravel Aquifer, an aquifer that extends from Bartlett, NH, to Hiram, ME. The

recipient of this extracted water is the largest bottled water company in the world, Nestle. We knew that they were not here for a

little water, that they were here for a lot of water. This raised several immediate questions and concerns for us.

One, who owns the water?

Two, who will control the usage of the water?

Three, how will the water be allocated if it becomes limited?

Four, is damage being done to the aquifer or the surrounding environment?

Five, do the citizens of Maine have a financial interest in this resource?

Six, which regulatory agency is responsible to sort out these

many questions? Is it a State, local or Federal responsibility.

And, seven, since water is considered a tradable good or commodity, is trade treaty law somehow involved and how would that law

affect local, State and Federal laws in the environmental area?

And finally, eight, is our community ready for this business?

I’m sure that we had a few more thoughts, but this was a start.

The answers to these questions in Maine were not encouraging. We

are ruled by the common law of absolute dominion. Essentially,

this law means if the water runs under your property, you can

pump it. In Texas, they call it the law of the biggest pump. Under

this doctrine, the landowners over groundwater claim ownership.

This may seem strange, as groundwater and surface water are part

of one hydrological system and in Maine surface water is in the

public trust and groundwater is not.

So several questions remain to be answered.

So who will allocate the usage?

It is not clear. It still has not been decided.

Is the environment and the aquifer being damaged?

Well, in some cases, studies have been done, but, in many cases,

expertise for review and long-term evaluation has not been sufficient and the public isn’t sure the resource is being protected.

What can citizens do to protect their interest?

In Maine, we wanted to pass a comprehensive law. We looked at

four legislative concepts. We wanted to extend Maine’s environmental law to large-scale extraction. We wanted a fair, open and

transparent citizen’s process. We wanted to establish reasonable

use standards. We wanted to place groundwater under the public

trust doctrine, and we wanted some recognition of the public investment in clean water. We suggested a severance tax on major

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extraction and to have the revenues invested in a permanent fund

similar to Alaska’s oil trust.

H20 for ME, the bottlers and their stakeholders launched into a

Statewide debate and added to the national debate on groundwater

issues. After nearly 4 years of debate and discussion, H20 decided

it was necessary to protect the resource and the environment as a

first step. We found legislators who agreed. We also found a willingness among the bottlers and other stakeholders to be constructive, and we negotiated a position.

In June 2007, the Maine legislature passed a law that does the

same.

It places all large-volume wells under the Natural Resource Protection Act.

Two, it provides for an open and transparent citizens process.

Three, it requires perpetual monitoring of all high-volume wells.

Four, it requires the applicant to pay for expert consultants to

review, evaluate and make recommendations to the State.

Five, it establishes a freshwater resource committee within the

State planning office to investigate all freshwater uses within watersheds.

And, six, it places environmental management and review responsibility for groundwater into two departments.

That is essentially what it does. It does not establish a public

trust with water. It does erode absolute dominion. The law will

only be effective if citizens are diligent about the enforcement of its

intent.

Finally, what could the Congress do to help the situation?

Well, it could provide financial resources and technical assistance

to local and State regulators involving environmental studies and

review.

Two, it could establish Federal minimum environmental standards for major extraction wells.

Three, it could review trade rules concerning water being designated as a tradable good and ensure access and control of clean

freshwater for the long-term best interest of U.S. citizens.

Four, it could extend standing to U.S. citizens using the Clean

Water Act as a model.

Five, it could place all freshwater in the public trust, and it could

hold the national conference on freshwater issues.

The Maine law is a start. Each State must review its situation

and adjust its State statutes to meet the new realities of the freshwater demands of the bottled water industry. For those States with

weak and outdated law, the new Maine law could be a first-step

model.

I wish that more than 30 years ago when I was a young legislator who was working on clean water law that I could have seen the

future. We could have fixed our groundwater law right then. Water

was bestowed upon us by the same power that granted us our freedom. Water is life. When it comes to potable water law, we can’t

afford to get it wrong.

Thank you very much.

Mr. KUCINICH. I thank the gentleman.

[The prepared statement of Mr. Wilfong follows:]

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Mr. KUCINICH. We’re now going to go to questions of the panel

and to Professor Hall.

In many of the bottling cases, Federal jurisdiction is invoked

when groundwater extraction affects surface waters. Do you believe

that Federal agencies such as the Army Corps and the EPA diligently enforce acts like the Clean Water Act and the Endangered

Species Act in these cases?

Mr. HALL. Thank you, Mr. Chairman.

In the bottled water cases—in many of the bottled water cases,

including some of the ones I’ve been involved in—and I should disclose that I represented some conservation groups, Trout Unlimited, National Wildlife Federation and the Nestle case in Michigan—Federal jurisdiction and Federal statutes were not an issue.

Federal statutes really come into play only incidentally, if, for example, the water bottler is also discharging pollutants into a navigable waterway or filling a wetland. But keep in mind that the

Federal wetland regulations only pertain to the placement of

dredged or filled material into a wetland, not the draining of water

out of a wetland. So the U.S. Army Corps of Engineers doesn’t really have much of a hook to address the environmental impacts of

water withdrawals.

Mr. KUCINICH. Thank you.

Now, in the proposed Great Lakes Compact that has not been

ratified by Congress, I understand there is an exception to the antidiversion provisions for products that are less than 5.7 gallons.

Does this provision effectively exempt typical bottled water products? And if it does, is there environmental justification for the 5.7

gallon threshold requirement?

Mr. HALL. That is an excellent question, Mr. Chairman. Thank

you.

Of course, I’ve been intimately involved in both the negotiation

and drafting of the proposed Great Lakes Compact. The exception

that you mentioned, the Great Lakes Compact, bans diversions of

water out of the Great Lakes basin which includes parts of eight

U.S. State plus two Canadian provinces. Exempted from that ban

on diversions of water out of the basin is water in containers less

than 5.7 gallons, basically an office cooler. So you’re correct. Bottled water is exempted from the ban on diversions.

However, the Great Lakes Compact would also require public

management by the State of water withdrawals, both ground and

surface water, at the State level for water that is used within the

basin; and water withdrawals for bottled water or any other use

are still subject to those requirements.

So I think it is actually a pretty fair compromise, all things considered. A water bottler within the Great Lakes basin, if the Great

Lakes Compact is enacted, which I hope it is, would be subject to

a long list of permit requirements, environmental protection standards, water conservation measures, as well as citizen review and

judicial review of any permits that are granted. They wouldn’t be

flat-out banned, but they would be under pretty good regulations,

and I think it would be a step in a good direction.

Mr. KUCINICH. It is my understanding that the FDA did not subject its spring water classification to a NEPA review. Do you think

it was obligated to do so under law? And if it did undertake such

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a review now, what would be the practical consequences? Could

anything be gained.

Mr. HALL. That’s another good question.

When the EPA promulgated its current bottled water rule, it did

not conduct an environmental impact statement pursuant to the

National Environmental Policy Act. I believe it should have. The

issue was not raised at the time.

I think it is very clear, even just looking at the common agreement among the panelists, that bottled water withdrawals from

springs certainly have the potential for significant environmental

impacts, which is the threshold requirement for an environmental

impact statement. And I think if the FDA were to relook at that

rule or reconsider it or if there were a petition for rulemaking filed

to the FDA, it would absolutely have to comply with the environmental impact statement in connection with its bottled water

spring rule.

Mr. KUCINICH. I think that is quite significant.

Now, in the wake of recent Supreme Court decisions narrowing

the definition of navigable waters in the Clean Water Act, have

there been proposals to enact new legislation to expand Clean

Water Act jurisdiction to the maximum that the Constitution permits to believe that this legislation is advisable and will it make

much of a difference for the types of disputes that we have heard

about today?

Mr. HALL. Yes, Mr. Chairman, I do. I believe it is Congressman

Oberstar and my Congressman, Congressman Dingell, who have

led an effort to enact the Clean Water Restoration Act which would

make clear really that the Federal Government’s jurisdiction over

navigable waters extends to all waters of the United States to the

extent of the commerce clause of the Constitution. I think that is

excellent legislation. That is how the Clean Water Act was enforced

and applied for over 30 years. I’d hate to see us take a step back

in the wake of the Supreme Court’s recent Rapano’s decision.

Mr. KUCINICH. Thank you, Professor Hall.

Mr. Shays.

Mr. SHAYS. Thank you, Mr. Chairman. Thank you for having this

hearing.

I view water as precious as gold in so many different ways. And

it was not lost to me that foreign companies came and bought a

number of water companies in the New England area because they

bought it for the water and they bought it for the land because

there is so much land that is reserved to protect our water supply.

I’m wrestling, though, with this topic as it is designed against—

as it appears to be focused on bottlers of water. I look at Candlewood Lake in my State. I think a lot of that water goes to New

York City. And I’m wrestling with the fact that water from northern California goes to southern California. I am wrestling with the

fact that soda uses water. You know, Gatorade uses water. And yet

we’re focused on the water company. You know, I am tempted to

ask you, Ms. Hauter, if you’d prefer and do you think that CocaCola is better for me than drinking water from a bottle. Is it better?

Ms. HAUTER. Well, I think what we believe——

Mr. SHAYS. No, no, I need you to——

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Ms. HAUTER. I think that what we believe is that it is a societal

question. Do we want safe and affordable——

Mr. SHAYS. That’s not what I asked you. I asked you specifically

if you think the water in a Coca-Cola is better for you than the

water that would be pure?

Ms. HAUTER. I think that is a question—it is an unfair question.

Mr. SHAYS. It is not an unfair question. If you are going to come

and testify before us and you are going to attack companies for

making money, it is very fair. Otherwise, you’re a meaningless witness, and I shouldn’t ask you any questions.

Do you want to be relevant? Do you want to testify? Then answer

the question. Please answer the question.

Ms. HAUTER. I think that Coca-Cola is unhealthy and that drinking a glass of tap water is a better option than drinking bottled

water.

Mr. SHAYS. Let me ask you this, though. Why would you not

have the concern—I guess I don’t know. Maybe Professor Hall.

Where does Coca-Cola get its water from?

Mr. HALL. Coca-Cola—both for the product Coke and as well as

for what I believe is their Dasani brand primarily uses water from

a municipal water supply.

Mr. SHAYS. Doesn’t the same analogy apply to soda and beer that

would apply to bottled water?

Mr. HALL. In some instances, yes, it does. For example, Coke,

which primarily sells bottled water that comes from municipal

water supply, I believe it is Dasani is their brand name.

Mr. SHAYS. I’m not talking bottled water.

Mr. HALL. Yeah, it is the same as Coke.

Mr. SHAYS. So they are depleting, in a sense, the water supply

locally and distributing it nationwide?

Mr. HALL. Correct.

Mr. SHAYS. OK. Water, basically, I believe is 1/50th percent of

the water that we consume. In other words, it is less than a percent. It is not 1/10th of a percent. It is 1/50th of a percent. So, in

the realm of things, why should I be focused on this issue, as opposed to the other 99 percent?

Mr. HALL. That is an excellent question, Representative.

I would say that, as I hopefully made clear in my initial testimony, bottled water is a tiny microscopic use of the overall national

water supply. And from a macro level, it is really not a major concern in terms of our water conservation and use. The concern is

that spring water bottlers withdraw water from, by definition,

springs which are very small, vulnerable water resources such

that——

Mr. SHAYS. These are unique water systems that you’re making

the point about?

Mr. HALL. Exactly.

Mr. SHAYS. Let me ask you. In Stanford, CT, next door was

Greenwich, CT. Greenwich—American Water Co., I think is the

name of it, didn’t have enough supply. The bog reservoir, they were

going to pump from the ground and put into the pond—into the

lake, and then they were going to take it. And we realized in Connecticut that we didn’t have anything that focused on the water

table. We focused on surface water.

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So what I did as a State legislator is I gave that right to the Department of Health. Because I do think Ms. Hauter and others

have an issue as it relates to a locally confined area that may find

its water table being drawn down. Why wouldn’t that just be an

issue that Maine, New Hampshire and others should work out on

their own without the Federal Government stepping in?

Mr. HALL. Well, first off, I’m pretty familiar with that region. I

actually grew up in Richfield right by Stanford.

Mr. SHAYS. Do you have family still there.

Mr. HALL. Yeah. Yes, sir.

Mr. SHAYS. Geez, I have to be on my best behavior. I just want

to say you have been an excellent witness.

Mr. KUCINICH. And even though the gentleman’s time has expired, since there is this local connection, I’ll ask the professor to

answer the question.

Mr. HALL. Thank you. And, in all seriousness, it is an excellent

question. I think that primarily water use should be managed at

the State and local level; and I think, by and large, State and local

governments have done and are doing an excellent job of improving

their management. But, however, the FDA through the spring

water rule has created essentially a national market for some of

the most vulnerable water resources in localities and State, and so

this is a problem that in some part was caused by the FDA and

to some extent can be fixed by the FDA.

Mr. SHAYS. Just last, though, I mean, if the State of New Hampshire or Maine or whatever is concerned with what is happening

with its aquifers, with its springs, it does have the legal authority

to step in, correct?

Mr. HALL. Absolutely. Yes.

Mr. SHAYS. And I would just say that I hope it does in a constructive way working with the bottlers and so on.

Mr. KUCINICH. I thank the gentleman. His time has expired.

To Professor Hyndman, is there a difference from a hydrological

perspective when you use groundwater for irrigation for agriculture

versus using it for extraction for water bottling?

Mr. HYNDMAN. The primary difference is exactly what Professor

Hall just mentioned. I mean, groundwater is groundwater. If we’re

talking about shallow groundwater, the quality of much of the shallow groundwater across, say, the Midwest is fairly similar. The

main difference in agricultural pumping is that is largely from

deeper aquifer systems that are further down in a watershed.

They’re not in the headwaters of a watershed.

Mr. KUCINICH. Is one more damaging than the other?

Mr. HYNDMAN. Yes. The spring water pumping is more damaging

because of the fact that it is in the headwaters.

Mr. KUCINICH. Would you repeat that.

Mr. HYNDMAN. Yes. The spring water pumping is more damaging

in my opinion because it is done in the headwaters of watersheds.

Mr. KUCINICH. Because it is done?

Mr. HYNDMAN. In the headwaters of watersheds in ecologically

sensitive areas.

Mr. KUCINICH. Now I’d like to ask you one more question, but

I’d also like to ask Mr. Doss and Ms. Hauter to respond. And I’ve

always wondered this. Can people typically perceive a difference in

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taste and is there a quality of difference between FDA defined

spring water and bottled water that does not technically meet the

spring water designation. Professor Hyndman.

Mr. HYNDMAN. For me, that would be a personal choice. And I—

personally tasting between the two of them in a blind tasting, I

probably could not tell you if one is spring water versus not.

Mr. KUCINICH. Professor Hall.

Mr. HALL. I doubt the average person could tell the difference.

And, in fact, some municipalities like Evart, MI, have as municipal

water, water that meets the FDA spring water definition.

Mr. KUCINICH. And Ms. Hauter.

Ms. HAUTER. No. There have been many taste tests around the

country and people have difficulty. Basically, bottled water is marketed on its packaging and its sex appeal and the claims that it

is healthier, not taste.

Mr. KUCINICH. Sounds like a Presidential campaign.

Mr. Doss.

Mr. DOSS. It is a consumer choice. Obviously, some consumers

may prefer tap water; some consumers may prefer bottled water.

We don’t disparage tap water. We think that if people are drinking

water that is a good thing, because it is a very healthy product.

Again, it boils down to consumer choice. I can tell the difference in

many bottled waters, just as I can tell the difference between tap

water and other beverages.

Mr. KUCINICH. You are saying you can’t or cannot.

Mr. DOSS. I can.

Mr. KUCINICH. You can?

Mr. DOSS. Absolutely.

Mr. KUCINICH. Can we take a test right now.

Mr. DOSS. I’m just saying I can certainly tell the difference in

many bottled waters that I drink.

Mr. KUCINICH. You’re under oath, but you’re——

Mr. DOSS. Absolutely.

Mr. KUCINICH. We’ll give you an exemption.

OK. Mr. Wilfong.

Mr. WILFONG. Yes, I think there really is no difference. The

water just happens to hit a low point in the ground and bubbles

up and out of it. It is all essentially the same water system.

Mr. KUCINICH. OK. To Professor Hyndman, if the FDA changed

its definition of spring water—I’d like to ask Mr. Doss to answer

this, too, so you can get ready. If the FDA changed its definition

of spring water to include groundwater not immediately and directly connected to a lake or spring, that is, you don’t have to draw

down the spring when you pump in order to sell it as spring water,

would that alleviate the direct impacts in spring wetland surface

water situations like in the McCloud, NH, and other locations

where they have been having problems during lower precipitation—or there have been problems during lower precipitation or

drought-like conditions.

Mr. HYNDMAN. Thank you, Mr. Chairman. It is an excellent

question.

If the FDA changed the definition to include groundwater that is

in the vicinity and even deeper groundwater, that could resolve the

concern because the pumping would not be pushed into those headVerDate 11-MAY-2000 12:50 Jun 05, 2009 Jkt 000000 PO 00000 Frm 00181 Fmt 6633 Sfmt 6633 U:\DOCS\49776.TXT KATIE PsN: KATIE
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water areas. And, in fact, you could do hydrogeologic studies that

would basically define the best areas to put this pumping where it

would have minimal impact.

Mr. KUCINICH. Mr. Doss, would you like to respond.

Mr. DOSS. I think the issue really goes back to the question of

sustainability at the State level. When a State grants a permit for

a bottled water company to withdraw that water, they should take

into consideration all the science involved. They should take into

consideration all the concerns raised here today by these professors. And if they decide that the water source is not sustainable

with the bottled water plant, then they should deny the plant the

ability to pump water from that particular source. So I think it gets

back to sustainability.

Mr. KUCINICH. I’d like to just go and ask every member of this

panel a question. From your written and oral testimony, there

seems to be broad support for the proposition that the USGS

should be empowered and funded to assume a much greater role

in groundwater mapping and monitoring. And if this is so, why

hasn’t it been done yet and what political obstacles stand in the

way of that reform? Ms. Hauter.

Ms. HAUTER. I think it is something that has been overlooked

and there has been a lack of funding for and that we have to get

busy and it is not just for bottling—for bottled water, but we need

to do it for a range of water issues from agriculture to industry.

Mr. KUCINICH. Professor Hyndman.

Mr. HYNDMAN. I think that the issues go beyond just mapping

for the U.S. Geological Survey. In fact, it is very important for the

funding for the USGS to have monitoring of surface water. It is an

incredible network that the U.S. Geological Survey has across the

country, but the funds have been continually cut. They have to

keep going back to cooperators for money.

And personally when I do research on broad scales to try to figure out the impacts on the things like climate change and land use

change, it is very difficult when these USGS gauges go off line or,

you know, a new one will startup somewhere else because that is

where a cooperator has an interest. If we don’t maintain the network for the type of science we’re talking about, it is very difficult

to talk about what the impacts will be.

Mr. KUCINICH. Thank you.

Professor Hall.

Mr. HALL. The truth is that doing the scientific work, gathering

information, the research, it is not sexy. It doesn’t capture the

public’s imagination. The work that Professor Hyndman does, the

work that I do, the work that USGS does is often overlooked, and

that is unfortunate because really that information is the foundation for making good decisions. And so I think one of the most important things that this committee could do would be to strongly

recommend more funding and support for USGS.

Mr. KUCINICH. Thank you.

Mr. Doss.

Mr. DOSS. I think I would say that we have a consensus here

that decisions need to be made on sound science, and I would agree

with that. And IBWA has supported the enactment of the 21st Century Water Commission, which will help those Federal agencies

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share data with the State, that can allow the State to make more

informed decisions, have better science. We think that is a great

thing, and we support passage of that Federal legislation and think

that is a proper role for the Federal Government.

Mr. KUCINICH. Thank you.

Mr. Wilfong.

Mr. WILFONG. Yes, I would agree with all that has been said. We

need a lot of help, especially in the smaller communities that have

few financial resources to be able to take a hard look at the

groundwater situation.

Mr. KUCINICH. Thank you.

Mr. Hyndman, we showed a photo of the Dead Stream to the

first panel witness from Nestle. And this photo was taken at a time

after Nestle began pumping in Michigan. My staff was informed

that this photo was shown to Nestle. What did you think the photo

shows? What do you think it shows?

Mr. HYNDMAN. This is the mud flats in front of the Doyles’ property, and the Doyles were involved in that case. And during this

summer, as well as at least one previous summer, the conditions

went to a point where the levels had fallen below what had been

observed prior to pumping. And it is a situation where the pumping

that is occurring is drawing down the water level beyond what the

natural conditions would be. So, therefore, the impacts are exacerbated by the pumping that Nestle has——

Mr. KUCINICH. Was this beavers that did this?

Mr. HYNDMAN. No, this is not beavers. This is a low water level.

Mr. KUCINICH. How do you know? How do you know it wasn’t

beavers?

Mr. HYNDMAN. Because I am very aware of what is happening

at this site. And there has been a beaver dam intermittently down

below this site.

Mr. KUCINICH. How many beavers would it take do that?

Mr. HYNDMAN. I am not sure how many beavers.

Mr. KUCINICH. OK. I just thought I would ask.

Ms. Hauter, is there a connection between what you see as a

threat of privatization of public water resources and the deterioration of the public water infrastructure? Could there be some sort

of taxation scheme by which either consumers or producers of

water products fund improvements in the public infrastructure,

such as the Clean Water Fund that you propose in your written

testimony?

Ms. HAUTER. Yes. This is one of our main concerns with bottled

water. Because it is sold as safer, because we no longer see public

water fountains being built, we are concerned that it is actually undermining our public water systems. And we do generally have

very safe and affordable drinking water, but we have real infrastructure problems. And every year there is a $22 billion deficit.

And in the future, in the very near future, if we don’t have more

Federal investment in our water infrastructure, we could be in a

situation where there isn’t safe and affordable drinking water. So

we would like to see that public commitment to safe drinking water

grow. And we do need a clean water trust fund to do that.

Mr. KUCINICH. Thank you very much.

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I want to thank all the witnesses. I am Dennis Kucinich, chairman of the Domestic Policy Subcommittee of the Oversight and

Government Reform Committee. This has been a hearing on assessing the environmental risks of the water bottling industry’s extraction. I want to thank all the witnesses from the first and the

second panel for their cooperation. The subcommittee will be in correspondence with you to followup on some of the points that were

raised today. I want to thank the staff on both sides for their participation, Mr. Issa for his cooperation.

And without further discussion, this committee stands adjourned.

[Whereupon, at 4:26 p.m., the subcommittee was adjourned.]

[The prepared statement of Hon. Bart Stupak follows:]

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