Montana Artesian Water Co. County probe finds bottling plant is 'legal, non-conforming use'

Daily Inter Lake

An investigation by the Flathead County Planning Department has concluded Montana Artesian Water Co.’s bottling plant in Creston is grandfathered within the expanded Egan Slough Zoning District, a finding that will allow the facility to continue its permitted operation despite regulations imposed by the zoning district east of Kalispell.

The investigation launched in July after two complaints against Montana Artesian were filed with the planning department, alleging the company’s bottling operation violated zoning regulations.

The Egan Slough Zoning District, which places tight restrictions on commercial and industrial facilities, expanded to encompass the bottling plant property after a ballot initiative passed during the June 2018 primary election, with 70 percent of votes cast in favor of the expanded zoning district. Many local residents and organizations who opposed the bottling plant hoped the expansion would restrict the bottling operation, a maneuver Daryl James with Montana Artesian said went against the purpose of zoning districts.

“They used a legitimate planning tool as a sledge hammer to stop a project,” James said. “I’m happy the county said very objectively that it can’t lay out this way. They rose above the fray.”

Lew Weaver, owner of Montana Artesian, said in an email to the Inter Lake that the planning department’s determination was “great news and should give the court what they need to wrap up the legal proceedings.”

The Flathead County commissioners are now expected to take action based on the findings of the planning department’s investigation.

According to the department’s report, any structure that had obtained a building permit prior to the expansion of the Egan Slough Zoning District is a “legal, nonconforming use.” Not only had Montana Artesian done so, but the report also asserts the facility was completed and capable of producing commercial levels of water bottling prior to the expansion of the district.

But Jack Tuholske, an attorney for Yes! For Flathead Farms and Water — an organization that spearheaded legal efforts against Montana Artesian and Flathead County — argues against the findings.

“The company did not possess the equipment in the facility that was needed to start commercial production,” Tuholske said. “The question of whether or not this facility is grandfathered in for full-scale commercial production for 1.2 billion bottles of water is one all sides need answered.”

He also made a reference to the definition of “grandfathered in” as outlined in the Montana Supreme Court case Russell v. Flathead County, which, according to Tuholske, ruled any expansion, change in use and additional uses implemented after the zoning is enacted is not grandfathered in.

“So it’s our position that he can have his building and he can have whatever level of activity he had on June 21st [before the zoning expansion] but he can’t expand,” Tuholske said.

Weaver stated in testimony the company bottled between 1,000 and 5,000 bottles of water prior to June 21, 2018, and none of it was sold to anyone.

The company’s permit application approved by the Montana Department of Natural Resources and Conservation, says the bottling plant has “the capacity to bottle up to 7,000 20-ounce bottles per hour.” According to court documents, this is only a portion of the 140,000 bottles the plant is capable of bottling per hour at peak capacity.

Montana Artesian began bottling water in 2018, but it’s not known what the production level currently is. James said in late August that the plant was “not running full capacity on the equipment it has, and it’s not going to be anywhere close to [full capacity] in the foreseeable future.”

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.

Amy Waller of Yes! For Flathead Farms and Future, said the organization will continue to fight the findings.

“We disagree with the county’s report that the bottling plant is grandfathered in,” Waller said in a written statement. “We think the county planning department’s determination that the bottling plant is an acceptable non-conforming use is incorrect and we will continue pressing the issue in court.”

James said he has no doubt Waller and others will continue to fight the bottling plant’s operations.

“I think they have showed nothing but intent to fight this,” James said. “Against court decisions and rulings, they’ve tried to fight it from every angle and will continue to do so.”

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