Judge overturns bottling plant’s water permit

March 30, 2019

A Montana judge has overturned the Montana Department of Natural Resource and Conservation’s decision last year to grant a water-use permit to a long-disputed bottling plant in Creston.

The 20-page decision issued March 26 by Judge Kathy Seeley of Lewis and Clark County District Court says that the state agency was wrong to grant the permit to the Montana Artesian Water Co., that allows the company to withdraw up to 710 acre-feet of water, or about 225 million gallons of water, per year.

The decision represents a win for opponents of the bottling plant. Organized as Water for Flathead’s Future, the group appealed the DNRC’s decision in District Court last November.

“This victory, though it comes through a case brought by [Water for Flathead’s Future], is a victory you have won, and you have deserved all along,” Water for Flathead’s Future stated in an email announcing the decision to the group’s supporters. “We are extraordinarily grateful to your help, the court’s understanding, and the tireless exertions of our attorneys who have never wavered in their belief.”

During the contentious three-day hearing in September 2017 that led to the permit being granted, objectors alleged that DNRC failed to adequately evaluate the firm’s plans to withdraw water year-round, and the impact it could have on neighboring water users.

Following the permit approval in 2018, Water for Flathead’s Future’s attorneys claimed the state department’s “administrative findings, inferences, legal conclusion and decision of the Final Order [to grant the permit] are in violation of the Montana Constitution and the Montana Water Use Act.”

Judge Seeley, however, ruled on only one of the six areas of objection that Water for Flathead’s Future brought before the court, making it a “narrow” ruling.

“The narrowness of the ruling plays in our favor, however, because it limits the possibility of being overturned on a technicality,” Water for Flathead’s Future stated in its email Friday.

Seeley ruled that the DNRC failed to meet “its own minimum standards” in issuing the permit.

“Without analysis of the ‘minimum information and data’ ... the agency decision fails as having missed a critical foundational step in determining whether a permit should be granted,” Seeley wrote.

The bottling plant, owned by Lew Weaver, began distribution last summer.

Separate from the DRNC permit issues, an investigation by the Flathead County Planning Department concluded in January that Montana Artesian is grandfathered within the expanded Egan Slough Zoning District, a finding that allowed the facility to continue its operation, despite regulations imposed by the zoning district east of Kalispell.