The sale of Nestlé Waters North America likely does not provide a legal basis for the Chaffee County Commissioners to deny an extension of Nestlé’s existing 1041 permit.
Commissioner Greg Felt questioned the possibility during the ongoing 1041 permit hearing Tuesday. Both Chaffee County Attorney Jennifer Davis and Nestlé legal counsel Caitlin Quander said the language in the existing permit does not apply to this sale because the permit is not being transferred “to another party.”
Local opposition group Unbottle and Protect Chaffee County Water responded to the announcement with a statement “condemning the sale of Nestle Waters to private equity firms.” The statement also calls for “the denial of Nestlé’s request for a ten-year permit extension” and “a moratorium on future water mining permits.”
Unbottle and Protect Chaffee County Water co-founder Jennifer Swacina said, “Our commissioners can, at their discretion, simply vote to deny this permit extension. They have all the ammunition they need.”
During Tuesday’s meeting, Commissioner Greg Felt said that, while he understands people “arguing that this is a transfer, it isn’t really, in terms of the corporate law and how that’s structured.”
Chaffee County Resolution 2009-42 authorized the 1041 permit, and Section 4.6 of the resolution addresses potential permit transfers:
“Permittee may transfer this permit to any 51% Nestlé S.A. owned subsidiary with written notice to the County. In the case of any other transfers, this Permit may be transferred to another party only with the written consent of the Permit Authority.”
“The applicant will not change as a result of the closing of this sale,” Davis said.
Quander concurred. “The permittee remains the same. Operations remain the same.”
“The way I’m looking at it so far,” Felt said, “is that the applicant remains the same and the company we’re dealing with for the foreseeable future remains the same.”
Davis responded, “That’s my understanding. The existing permit addresses transfers to a different subsidiary of Nestlé S.A. or transfers of the permit to an outside entity. That’s not what’s happening right now. … The permit is not being transferred under the proposed deal.”
The Commissioners agreed to enter the Nestlé Waters 2020 annual report into the record for the 1041 permit hearing and continued the hearing until 1 p.m. April 20 with the expectation that Harvey Economics will present the findings of the economic impact analysis at that meeting.
The Commissioners also agreed that they expect to reopen the public comment portion of the 1041 hearing in a special meeting in May to allow time for everyone to review the economic impact analysis and the 2020 annual report.
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