Beneath the surface

During a slow morning stroll through the spring-fed woodlands that border his farm near Creston, Steve Harvey recalls his first meeting years ago with Lew Weaver, who was then a new neighbor in the small agrarian community stretching along the eastern banks of the Flathead River.

“He said it was the culmination of his dreams to own a farm,” Harvey says, his gravelly voice carrying a notable absence of the vitriol that has since come to characterize relations between the two landowners. “And I thought that was great, because it was the culmination of my dreams to own a farm.”

That was then.

But since early in 2016, the neighbors have emerged as central figures in the Creston community’s divisive — and often emotional — fight over Weaver’s proposal to develop a water-bottling plant in the middle of the rural landscape bordering Egan Slough.

In November 2015, a well-drilling rig appeared on Weaver’s property, where cattle graze and rows of hay, wheat and barley grow in the fields. In a part of the valley known for its plentiful groundwater and artesian, or free-flowing, springs and wells, that was hardly unusual.

Weaver informed them that he was planning a small start-up business, the Montana Artesian Water Co., that would withdraw, bottle and sell about 30 or so gallons of well water per minute — a rate consistent with most domestic uses in the area.

“No one saw that as a threat or wanted to tell them what to do with their own land,” Harvey says.

But a January 2016 public notice in the Daily Inter Lake quickly grabbed the Egan Slough area’s attention, when Harvey and other residents learned that the water-right application from Weaver was requesting permission to withdraw up to 710 acre-feet of water per year, or about 450 gallons per minute.

In the year-and-a-half since, the neighbors’ initial concerns have evolved into a highly active nonprofit group, Water for Flathead’s Future, which has organized a dedicated army of local residents and volunteers working to stop the proposed plant. They’ve taken their fight to the Flathead County Commissioners, the Montana Legislature and most recently to the ballot box, after securing enough petition signatures last week to ask Flathead County’s voters in 2018 to approve a zoning expansion that would potentially preclude Weaver’s plant as a qualifying land use.

For his part, Weaver cites his long-standing family ties to the area and says he wants to be a good neighbor, with no interest in developing the gargantuan factory that many of his neighbors envision should he choose to exercise his water right to the fullest extent possible.

Weaver has sought to fight back against what he calls a campaign of “misinformation” by the plant’s opponents, taking out full-page newspaper advertisements to build support and hiring Helena-based public-relations consultant Darryl James, who was also the principal lobbyist for the Montana Infrastructure Coalition during the 2017 legislative session.

“We don’t want to subdivide the land like some people have had to do to keep the family farm,” Weaver says. “This small operation, which we’ve proclaimed to be from the beginning, is something that would augment the income to the farm to sustain families for years to come, to be able to keep that property in the rural area that it is.”

The Water Right

While the local controversy now spans a web of issues — from concerns over potential water pollution and road dust to land values and property rights — those potential secondary impacts radiate out from Weaver’s preliminary water right, which would grant him access to 231.5 million gallons per year from the underlying aquifer. Of that, 191.6 million gallons could be bottled and sold, while the balance would be used for rinsing empty bottles and a geothermal system that would heat the facility.

In January 2016, the state Department of Natural Resources and Conservation issued a preliminary determination to grant a water right — basically the final step before the permit is officially granted. It’s currently being contested by a numerous parties, including local residents, the U.S. Fish and Wildlife Service’s nearby spring-fed hatchery in Creston and the Confederated Salish and Kootenai Tribes. That objection process will continue playing out in the Montana Water Court later this year.

During a meeting with the Daily Inter Lake editorial board last month, Weaver and James pointed out that as with all new water rights in the state, the Montana Artesian Water Co.’s would be subject to a 20-year period in which it is “perfected.” During that time, the state will require the company to submit records of its actual use, and fine-tune the permit to mirror the actual quantity of water being withdrawn.

Weaver has stated publicly and in newspaper ads that his plant would be limited to bottling 25 to 30 gallons per minute, despite the higher ceiling for which he’s asking in his water right.

“We publicized and made quite clear that we’re not planning, on initial opening, on having more than two trucks a day of water going in and out of that facility — a maximum of 10 would be the build-out of it,” he says.

If that’s the case, counter opponents say he should revise his water-right application — put his promises in writing, essentially — to reflect those small-scale plans and put the community’s fears to bed.

“Telling me how to run my business and how I can grow it is totally irrational to me, as a business person,” Weaver responds. “It’s not fair, it’s not ethical in my opinion, to tell me what I can or can’t do with my business if I’m working within the letters of the law in Montana.”

His verbal assurances mean little to Harvey, however.

“We’re only judging the permit. I want to be very clear. We have to live with this,” he says.

Drawing down the water table

Weaver and James note that the amount of water he is requesting is not unheard of.

Larger water rights already exist in the area, although irrigation uses are intermittent, and they don’t impact the water table year-round. And while the nuances of the underlying aquifer are not fully known, the amount he is requesting is minor compared to the massive quantity of water that flows underground from the Swan Mountains toward the Flathead River and Flathead Lake, continually refilling the Deep Aquifer and other, shallower aquifers that lie beneath the area.

Harvey and other neighbors still worry about the impacts to their wells, however. The state’s analysis of the maximum withdrawals for the Montana Artesian Water Co. found that 2,089 registered wells within a 6.8-mile radius will experience a drop in the water table of at least 1 foot, after five years of continuous use. Of those, 163 would be drawn down by at least 5 feet, 14 would be drawn down by at least 10 feet and the maximum draw-down was modeled at 20.5 feet, on a well that lies 635 feet from the facility.

Simply drawing down the water table is not sufficient for the state to consider the new use an “adverse effect” and reject the permit, however.

“If someone wants to have a cherry orchard out there, they’re probably going to be using an even higher volume of water than he’s using out there, but nobody cares about that,” James says. “It’s interesting to me that this has kind of a big target on it.”

Beyond the effects on neighboring wells, Harvey also worries what a lowered water table might mean for his property, on which several artesian springs naturally bubble to the surface year-round, supplying water to the woodlands that provide an oasis for wildlife amid the farm-dominated landscape of the Lower Valley. A drop in the water table could correspond to a drop in the water pressure that keeps his artesian springs flowing, he says.

Those concerns are also shared by the Flathead Lakers, a local nonprofit organization that advocates for environmental protection of the Flathead Lake watershed. In a letter sent to DNRC last year, Flathead Lakers President Greg McCormick and Executive Director Robin Steinkraus requested a broader environmental analysis that would more fully account for the potential impacts on nearby groundwater flows, wetlands and fish habitat.

“Shallow groundwater is less than 8 feet from the surface year-round at the proposed project site,” they wrote. “An evaluation of potential impacts of the proposed water withdrawals on the shallow aquifer, which is associated with the Flathead River, wetlands and soils, is needed.”

Limits on use

The other major regulatory hurdle for the Montana Artesian Water Co. is a discharge permit currently being considered by the state Department of Environmental Quality.

The draft permit was issued by DEQ in June 2016, specifying conditions for discharging waste-water from the process of rinsing the un-filled bottles, which would be manufactured on-site.

Under the terms of the permit, the facility’s maximum discharge to a tributary to the Flathead River is capped at 5 gallons per minute. Because the amount of rinse-water produced relates directly to the amount of bottles the plant can fill, that would effectively limit the plant’s level of production. Weaver says that would be in the neighborhood of 25 to 30 gallons per minute, consistent with his stated “maximum build-out.”

The Montana Artesian Water Co. would have to re-apply for a modified discharge permit if they wanted to increase production beyond the limit in the current draft permit. James contends that for the plant to ramp up to the maximum 450 gallons per minute in the water right, the collective impacts of truck traffic and facility expansion would trigger a more comprehensive environmental analysis of the plant.

“If it were really a four-Wal-Mart-sized facility he was proposing out there, I think you probably would see an [environmental impact statemment] and they’d say ‘OK, maybe this is not an appropriate use in this area,” James says.

Bottling plant opponents disagree, noting that the “trigger” for a full environmental impact statement is determined by the regulators, rather than a black-and-white threshold spelled out in the law. They’ve also panned the state agency’s analysis as insufficient, given the potential scope of the project, and point out that other similar-sized bottling plants require dozens of truck-trips per day to ship the bottled water and have a footprint far larger than the modest building that currently sits atop Weaver’s land.

Changes to Egan Slough

Weaver says his word is his bond, and he’s given his word that he won’t seek a future build-out of the plant that critics worry could require a sprawling facility, more than 100 trucks-trips per day and a fundamental change to the rural character of the community.

“I don’t know what our demand will be or what would be a normal operation for us, but it’s not to put up Super Wal-Mart-sized buildings,” he says.

And when asked whether he has any interest in selling his plant to a larger company that might be less considerate of neighborhood values, he offers an unequivocal “no.”

Objectors to the water right, however, contend that the record shows otherwise. Emails from Weaver they obtained through court proceedings show that in late 2015, he reached out to Mountain Valley Spring Co., based in Hot Springs, Arkansas.

“Would your company have any interest in opening and operating another production plant in Montana?” Weaver wrote.

He also emailed a representative from California-based Core Natural Water that same month.

“At this time, we do not sell or package water for anyone else. We are at the stage to begin negotiating this type of arrangement, and wanted to approach your company as one of our first inquiries,” he wrote.

In a separate email, Weaver noted, “The building has been built with expansion in mind and has significant adjoining acrerage [sic] to accommodate this expansion.”

Asked about those emails, Weaver said his intention is being misconstrued, and that they were simply part of his early business research to gauge the demand for his future product and the value of a possible plant.

“It was never my intention to sell the plant, or the water right. No. Never,” Weaver says. “… I was inquiring about information, I was inquiring out of curiousity and have since completely changed my mind from that, but it was part of a marketing product for our water.”

But for David Eychner, one of the leaders of the Water for Flathead’s Future group, the emails only confirmed his fears.

“The concern is it’s going to be more than the ‘mom-and-pop’ operation with a couple trucks,” he said. “If he’s got the right to extract 710 acre-feet of water per year, that is larger than the few plants that have sucked the water from the other California aquifers.

Eychner adds that even if Weaver doesn’t sell his company, there would be little to stop those larger, national corporations from following suit if he’s successful.

Next Steps

The two main permits Weaver needs to secure are still undergoing review.

The objectors fighting his preliminary water-right will continue their case before the state Water Court this summer and fall. Regarding the discharge permit, state Water Protection Bureau Chief Jon Kenning declined to provide a time-table, but said the state is still reviewing the hundreds of comments it received before deciding whether to approve the permit or subject it to a more stringent environmental review.

Flathead County’s legal department, meanwhile, has been mum on when a ballot initiative to extend the Egan Slough Zoning District to include the proposed bottling facility will be put to a county-wide vote. The county election department on June 28 determined the ballot-initiative petition had received enough signatures to appear on a future ballot.

If it succeeds at the ballot box, Weaver will have to convince the zoning district’s board that his proposed facility meets the guidelines of the district’s permitted uses.

For more information on the issue from the Montana Artesian Water Co., visit montanaartesianwater.com.

For more information from the group Water for Flathead’s Future, visit www.waterforflatheadsfuture.org.