After years of controversy surrounding its impending operations in Creston, the Montana Artesian Water Company has begun putting bottles on local shelves, even as the Flathead County Planning Department prepares to determine whether or not the plant’s legal status within the expanded Egan Slough zoning district allows production.
The bottling plant, which has engendered passionate opposition from local citizen groups such as Yes! For Flathead Farms and Water and Water for Flathead’s Future, has been bottling water for local distributors, said Darryl James, a spokesman for the company and its owner, Lew Weaver. The company holds a permit to withdraw 710 acre-feet of water, or about 230 million gallons annually, from the aquifer in the Egan Slough zoning district.
However, the plant is “not running full capacity on the equipment it has,” said James. “It’s not going to be anywhere close to [full capacity] in the foreseeable future.”
That future remains cloudy, however, due to the outstanding question of the plant’s legal status in the Egan Slough zoning district.
In June, voters approved by a 70-30 margin, a ballot initiative led by the citizens group Yes! For Flathead Farms and Water to expand the Egan Slough zoning district to include the bottling plant’s property in Creston. The zoning district’s expansion brought the plant into an area that is zoned primarily for agricultural and residential land use - seemingly blocking the plant’s ability to manufacture bottled water.
But depending on a decision by the county planning department, Montana Artesian could receive “legal nonconforming” status - in effect, grandfathering in their bottling operation from before the zoning district expansion.
“We’re trying to figure out how it works,” said County Planning Director Mark Mussman. Mussman said the county received a complaint on Montana Artesian’s bottling operation, and “on its face, it appears that the operation may violate the Egan Slough zoning district regulations, but there are non-conforming issues that we are trying to figure out and trying to determine whether or not that operation would be a legal nonconforming use.”
Mussman said that typically, a company’s nonconforming legal status, or grandfathering in, means that it can “maintain the activity that they had prior to the zoning becoming official.”
That capacity is a matter of dispute over permits, capacities and when bottling operations began.
Montana Artesian claims that the new zoning regulations don’t apply to the bottling plant because they secured the necessary permits ahead of the June vote. “As soon as the appropriate permits were in hand they were prepared” to begin bottling, said James. When asked, he did not specify when the plant began producing bottled water.
But opponents of the plant say that permits are beside the point - if the plant was not bottling water at the time of the zoning expansion, then no level of production is grandfathered in. In an emailed statement, Amy Waller, a representative for Yes! For Flathead Farms and Water, claimed that Montana Artesian did not begin bottling until July, more than a month after voters approved the zoning expansion. “The regulations and Montana law clearly state that no expansion of a nonconforming use may occur after the zoning regulations are adopted, therefore there is no reason for the county to be investigating further.” If no bottles were produced until after the zoning vote, she wrote, then Montana Artesian “is violating the regulations and the county needs to immediately enforce the regulations and respect the will of 70 percent of Flathead County voters.”
But James claimed the issue of grandfathering the plant into the new Egan Slough is a moot point, citing a lack of clarity on the validity of a citizen-driven zoning initiative. There’s “a lot of confusion about how the county is even supposed to implement a ballot-driven initiative,” he said. “It’s not fairly articulated in state statute whether that’s even allowable. Montana Artesian water does not believe that it applies to the plant because it was pre-existing and the existing zoning rights wouldn’t preclude the operation of a water bottling plant.”
Waller, however, refuted any questions of legal process. “The initiative process is rooted in the Montana Constitution, and the voters of Flathead County, by a landslide 70 percent vote, have lawfully enacted the expansion of the Egan Slough Zoning District to protect our farms, water and property rights,” she wrote in her statement.
“The expanded Egan Slough Zoning District is legal and enforceable, and we strongly disagree that the bottling plant is somehow a legitimate pre-existing use” as she claimed no water was bottled before the vote.
The county planning department is currently gathering information on the plant’s pre-existing capabilities and other questions, such as the official time of the zoning district’s expansion, as it reaches its decision on the plant’s status.
“We’re awaiting more information to make that determination,” Mussman said. “We’re going to rely heavily on the county legal staff to tell us exactly whether or not they can be considered legal nonconforming and grandfathered in.”
Mussman declined to give a specific timeline for the planning department’s decision on how to “administer the Egan Slough development regulations,” but said a decision would be made “in the foreseeable future.”
In the meantime, Montana Artesian will continue its bottling operations as market demand allows, said James. The plant is currently producing individual serving-sized bottles of water under the Montana Artesian label, to be distributed in area convenience stores. James said the plant isn’t running on regular hours at this time, as bottle operators tinker with the production line.
″[Weaver has] not been running consistent hours yet but he does not anticipate a seven-days-a-week or 24-hour operation,” James said. “That was never part of the proposal.”
James said a couple people have been hired to work in the plant, but until Montana Artesian’s operators “get the product up and running and more contracts in place for the purchase of the water, they don’t anticipate more ramp-up of the scale.”
Ramp-up will depend on market demand, he said, noting that all of the bottled water had been sold so far.
“It’s going smoothly for a start-up.”
Reporter Adrian Horton can be reached at email@example.com or at 758-4439.