Water bottling opponents file lawsuit against county

September 20, 2018

Opponents of a water bottling plant in Creston have lodged their complaints in Flathead County District Court, alleging in a lawsuit that the county has not performed its legal duty to enforce the Egan Slough zoning district.

The lawsuit was filed Sept. 7 on behalf of Egan Slough Community, a nonprofit established for the “protection of the property, agriculture and natural resources” of the Egan Slough district near Creston; advocacy group Yes! For Flathead Farms and Water, which spearheaded the successful ballot effort in June to expand the Egan Slough zoning district; and Amy Waller, an organizer for Yes! For Flathead Farms and Water and a resident of Egan Slough. The suit accuses the defendants - the Flathead County Board of County Commissioners, the county planning and zoning department, the city-county health department and Montana Artesian Company - of ignoring the rules of the expanded zoning district by allowing the bottling plant to begin operations in July.

The suit will proceed with a hearing for Flathead County defendants in district court in Kalispell on Tuesday, Sept. 25, at 9 a.m.

At issue is the plant’s status as a legal non-conforming structure, and whether or not that status allows for any bottling operations. On June 5, Flathead County voters approved, by a margin of 70-30, the expansion of the Egan Slough zoning district by 530 acres. This brought the bottling plant into a district zoned primarily for residential and agricultural use - seemingly blocking the plant’s ability to bottle water.

Zoning regulations, however, allow for some pre-existing structures or uses to be grandfathered in. These uses, according to Egan Slough’s regulations, “shall be deemed to be a nonconforming use and may continue in the manner and to the extent that it existed or was being used at the time of the adoption of these regulations.”

The crux of the dispute is over Montana Artesian’s existing use at the time that the election results were certified on June 21.

As previously reported by the Daily Inter Lake, Montana Artesian argues that because they secured permits to bottle water from the Egan Slough aquifer before the county vote, that bottling capacity is grandfathered in. “As soon as the appropriate permits were in hand they were prepared” to begin bottling, said Montana Artesian spokesman Darryl James last month.

The company holds a permit, issued by the Department of Natural Resources and Conservation, to withdraw 710 acre-feet of water, or about 230 million gallons annually, from the aquifer in the Egan Slough zoning district. That permit is also clouded in conflict; a court case questioning the legality of the DNRC’s permit will be heard in Helena next month.

But since Montana Artesian was not actually bottling water on the day of the Egan Slough expansion, the suit argues, then no capacity is grandfathered into the new district.

“As of the date of the election, no commercial or industrial water bottling activity had occurred at the MAWC facility,” the suit claims. It also claims that Montana Artesian did not obtain a proper manufacturing license prior to the election, and thus no operation capacity is eligible for non-conforming use.

The suit claims that Montana Artesian did not begin bottling operations until after a county inspection on July 12, over a month after the county vote.

James previously confirmed that the company is indeed bottling water at a rate “far below” the facilities’ capacity for local distributors, though he did not specify when production began.

The county planning commission, meanwhile said they were gathering information before making a final decision on Montana Artesian’s legal non-conforming use.

The suit’s plaintiff’s, however, claim that the mandate for enforcing the Egan Slough regulations is clear, and is calling on the court to issue an order that would shutter the plant’s operations, which it sees as a clear violation of the zoning district.

The suit also alleges that the plant’s operations interfere with “use and quiet enjoyment” of property within Egan Slough and contribute to “unlawful noise and air pollution and increased safety risks on local roads.” Additionally, the suit argues that the “presence of an ongoing industrial concern in this rural area negatively affects property values.”

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