Flathead County voters to decide future of water bottling plant Tuesday

Montana Artesian Water Co., a water bottling plant in Creston that touts itself as being “just downstream from Glacier National Park,” is being challenged in the courts and on the ballot by conservation organizations.

Flathead County residents will vote Tuesday on whether the plant should be included in an expanded zoning district, limiting its future size and raising the ire of property rights advocates.

Initiative 17-01 proposes to add 530 acres into the existing 1,150 acres of the Egan Slough Zoning District, including the property owned by Montana Artesian. The county created the zoning district in 2002 to limit certain land uses.

Earlier this year, the Montana Department of Natural Resources and Conservation granted Lew Weaver and his Artesian Water Co. a permit to extract 710 acre feet of water per year, of which 588 acre feet would be bottled.

The factory is about six miles upstream from Flathead Lake in an agricultural area along Egan Slough, a body of water near the Flathead River on the southern outskirts of Kalispell.

During the permitting process, neighbors and county residents turned out in force to oppose the project. Some 22 neighboring landowners petitioned the Flathead County commissioners to include the bottling plant in the existing agriculture zoning district, but the board denied that request.

So the citizens took the issue into their own hands, gathered over 12,000 signatures and had the question placed on the June 5 ballot.

Meanwhile, the conservation groups Flathead Lakers and Water for Flathead's Future appealed the DNRC's administration decision upholding bottling plant's water permit. The conservationists argued that the state's scientific analysis was poor and the DNRC did not follow the requirements of the Administrative Rules of Montana.

That challenge is pending in Helena District Court.

Even if the initiative to expand the zoning district passes on Tuesday, Weaver can still finish his bottling plant and begin production, but its future growth would have to comply with the zoning district’s regulations.

Already, under the current permit, Weaver’s ability to pump effluent from rinsed water bottles into a tributary of the Flathead River is limited.

And there are other objections.

The Egan Slough Community, a property owners' group, sued the county commissioners over their decision not to annex Montana Artesian’s land into the existing agricultural zoning district. Twenty-one other property owners volunteered to have their neighboring land annexed into the district.

In March, Flathead County District Judge Robert Allison ruled that the commissioners — Pam Holmquist, Gary Krueger and Phil Mitchell — did not consider science, the county growth policy or public comment when making their decision.

Under Allison’s order, the commissioners met last week to review audio transcripts of previous public hearings and testimony.

They are under no court deadline to make any kind of decision, and with the looming court cases and ballot initiative, the commissioners have little incentive to act before hearing from voters and judges.

Montana Artesian requested – and received – a water right for 450 gallons per minute, which equals 715 acre feet of water year. (An acre foot is water one foot deep on one acre.)

However, the company is nowhere near able to produce that much bottled water, company spokesman Darryl James said. The company has sales agreements in place, but has not bottled water to date.  The company has yet to engage a distributor and it would have to enter a bottled-water market that is already near capacity, he said.

In January 2018, the DNRC issued a water right to the company.

The company also submitted an application for a wastewater discharge permit to the Montana Department of Environmental Quality.

The permit allows heating water of 60 gallons per minute and five gallons per minute of rinse water discharge, based on a production capacity of 35 gallons per minute. The DEQ found there were no significant impacts expected from these two discharge sources.

Montana Artesian says its initial phase of operations will use 25 to 30 gallons per minute, but as market demands dictate, the bottling plant could be enlarged and scaled up to use more water.

The company says aquifer testing has demonstrated a safe yield from the well is 450 gallons per minute, which could produce about 1.2 billion bottles of water annually.

“Montana Artesian Water does not believe it is feasible to bottle and ship this volume of water from this site given existing physical constraints,” the company said in a statement. “Beyond the infrastructure limitations, the Weavers have no personal or professional desire to build an industrial-scale facility on their property.”

Neighbors of the facility contend the bottling plant could harm their water wells.

But according to the company, DNRC hydrologists “conducted a rigorous evaluation” of the aquifer data to determine if long-term pumping would harm other wells.

“The results of their modeling efforts predicted that pumping would lower the water level in some wells, but not to the extent that it would have an impact on their water supply or availability,” the company said.

The appeal in Helena District Court claims that the permitting process was "flawed" and did not live up to minimum standards required under the Administrative Rules of Montana. Also ignored, the appeal contends, were current scientific standards recognized by hydrogeology professionals.

As the Creston plant was gaining momentum in 2017, Bigfork legislator Bob Keenan sought to address the issue by introducing a bill that would have modified Montana’s Major Facilities Siting Act, which regulates oil and gas pipelines and overhead transmission lines.

The bill required that bottling plants with water permits of over 100 acre feet per year receive additional agency and public review, and would have demanded a full Environmental Impact Study for the bottling plant.

The bill failed outright, never making it out of committee. Keenan was able to "blast" the bill to the floor of the Montana Senate, but it died there as well. Rather than an EIS, the state conducted a 23-item environmental assessment of the bottling plant.

“The state is in need of some other type of protection,” Steve Moore, president of Water for Flathead’s Future said. “They don’t have any way to protect citizenry from this type of enterprise. This is a failing statewide of how the population and government deal with their resources.”

Moore said the numbers look good for the initiative to pass on Tuesday.

He said opponents of the bottling plant — and the idea of shipping Montana water out of state — span a wide demographic, from conservative to liberal.

“It’s a uniting issue,” he said. “People see that there’s something enormously wrong with putting a big hole in the ground, building a bottling plant and shipping the water out of state.”

Still, the Flathead Valley is a fairly conservative place, and “zoning has a strong aftertaste in this community,” Moore said. Some people are reacting against the initiative as a property rights issue, he said, “but I don’t think they’re paying attention to what is being proposed.”

Depending on the outcome of Tuesday’s vote, Moore is personally looking into the possibility of a statewide ballot initiative that would "remedy the types of permitting and governmental failures that allow situations such as this bottling plant in Creston and the slaughterhouse outside Great Falls to be imposed on a community without the community's ability to unite and proactively accept or reject those sorts of enterprises."

The district court lawsuits have been consolidated in Helena District Court and will proceed. A hearing on Monday will consider a stay of the DNRC water permit, which could halt production.

Another suit has been filed in Flathead County District Court, alleging violations of the Montana Environmental Protection Act. That suit has not yet been served on defendants, according to Moore.

“A lot of things converge June 5,” Moore said. “Will we win on the initiative? I think so. There is overwhelming support.”

Despite the outcome of the legal wranglings and vote, Moore said the state DNRC needs overhauling.

“The DNRC as a permitting agency is a bureaucracy that no longer serves the purposes it attests to,” he said. “It’s time for the DNRC to live up to its name — natural resource AND conservation. Somehow we have to reinvoke the community’s right to self-determination.”

Moore said the agency does not understand a complex water system such as the Flathead Valley. “They have to be brought up to speed on current science.”

Moore said the DNRC believes that as long as there is unallocated water supply in the Flathead River, “there is unlimited supply in the deep aquifer. It’s an extremely complex geology and DNRC is taking an over-simplified approach.”

Darryl James, a consultant and spokesman for Montana Artesian, said the permitting agencies did their homework on Weaver’s water rights application, and the public should abide by those decisions and let the project get up and running.

James said the regulatory process is as it should be and is not broken.

“It’s a rigorous analysis by DEQ and DNRC and their respective areas of authority,” James said. “There’s nothing to suggest there’s anything wrong with the way water permits are issued. There’s not a flaw in the system.

“The appeals and court filings are intended to do nothing but drag out the timeline. They’re gaming the system ... over issues that have been fully vetted,” he said.

James said there were 10 other large water rights applications filed with the state around the same time that Weaver did, about three years ago, some much larger in size, including one for 1,000 acre feet.

“If Mr. Weaver’s well is at 750 acre feet, where are the groups with regard to the other 10 applications that dwarf Weaver’s single well?” James asked. “It’s not about the water. They simply don’t want the project in their little neighborhood.”

“I don’t blame the folks and their concerns,” James added, “but they should trust that the regulators are treating this as every other project, and let something proceed until something is shown to have an adverse effect.

“There’s a lot of hysteria around this, and it’s all for naught.”

Montana Artesian will wait until after Tuesday’s election to determine its course of action, James said.

“It’s a bit of a wild card,” he said. “It depends on what the county decides to do. It depends on how the county wants to interpret the existing criteria in the zoning district. It could be interpreted as being grandfathered in, or tell him that his existing investments are null and void and he has to shut down his business.

“We have to wait for the county to make a determination on that.”

But, James added, the county has been open about the existing Egan Slough Zoning District and the reluctance to add Weaver’s land into it. “Their impression of the zoning district has been made pretty clear by their actions,” he said.

One of the big fears being tossed around is that Montana Artesian will be bought by a large company such as Nestle or Coca Cola.

James said Nestle does buy other plants, but those plants are mostly using municipal water supplies.

“They’re not buying something like Mr. Weaver is producing,” he said. “I don’t see the problem. There’s an expressed interest of the developer to keep it as a small family operation.”