Bottling plant still minimally operating

A spokesman for Montana Artesian Water Co. said a recent court ruling that overturned a state water-use permit for the Creston bottling plant won’t “kick the project back to square one.”

Although the initial water-use permit has been suspended, plant spokesman Darryl James said Tuesday the plant is still operating at a minimal level under a threshold that allows the facility and others who own wells to pump at very low levels.

Lewis and Clark County District Judge Kathy Seeley ruled last week that the Montana Department of Natural Resources and Conservation erred in issuing the permit for Montana Artesian and failed to meet “its own minimum standards.”

Montana Artesian and the Department of Natural Resources and Conservation have 60 days to appeal the ruling. If an appeal is submitted, the case will move to the Montana Supreme Court.

James said Montana Artesian can’t comment on whether they plan to file an appeal.

Graham Coppes, one of three attorneys with Ferguson Law Office representing Water for Flathead’s Future — the group that appealed the DNRC’s decision in district court last November ­— said the primary argument was that minimum requirements for aquifer testing were not met. An aquifer test allows hydrologists to be able to examine underground water properties that can help scientists estimate various factors, including water pressure and water speed and provide insight into how wells may impact resources in the long term.

“The data in these aquifer tests are meant to make really important decisions regarding permits,” Coppes said. “When these omissions of data occur like with the company [Montana Artesian], it can have the potential to be detrimental down the road.”

According to the ruling, the DNRC admits Montana Artesian did not fully comply with its administrative rules regarding the company’s application and that minimum information required was not included.

The state department passed a law in 2012 stating, among other stipulations, those applying for groundwater permits must meet certain “minimum requirements.” One of the most significant parts of the application, according to Coppes, is an aquifer test.

Coppes said to picture the aquifer test as the base of a pyramid that helps determine whether to grant a water-use permit. The required information and data collected during testing is used to prove or disprove the criteria for issuing a permit.

“But what they found were foundational flaws in the input. Ultimately, she [Judge Seeley] hung her hat on the fact that they [the state] built this law, then decided to not uphold that law,” Coppes said.

Seeley explained the “foundational flaws” in her ruling as well.

“When an agency ignores its own minimum standards required at the initial application, the resulting decisions dependent upon that information cannot stand as valid or correct,” Judge Seeley said in her decision. “Without analysis of the ‘minimum information and data,’ including aquifer testing requirements recorded on the mandatory Form 633, the agency decision fails as having missed a critical foundational step in determining whether a permit should be granted.”

Seeley made her ruling on one of six legal objections raised by the groups in opposition. The ruling is classified as “narrow,” which Water for Flathead Future said in an email is favorable because “it limits the possibility of being overturned on a technicality.”

James said the ruling highlights procedural issues the company anticipates it may have to go back and rectify by way of more aquifer testing.

“It all hinges on that 633 form,” James said. “There have really been no findings of fact on whether or not the project should move forward on merit. The ruling made was very narrow and we have to fill out the form in its entirety.”

At full capacity, Montana Artesian could produce about 1.2 billion water bottles annually, or about 140,000 bottles per hour.

Reporter Kianna Gardner can be reached at 758-4439 or kgardner@dailyinterlake.com