Judge tosses permit for Creston water bottling plant — again

A district judge in Helena has again sided with neighboring landowners and conservationists in a five-year fight over a water bottling facility in the Creston area, saying the state Department of Natural Resources and Conservation erred when it issued a water-use permit to the Montana Artesian Water Co. in 2017.

In a ruling issued Thursday, Lewis and Clark County District Judge Kathy Seeley found Montana Artesian didn't provide sufficient data, required by the DNRC's own rules, for the agency to conduct a valid scientific analysis and justify issuing the permit. By failing to collect that information, the agency "missed a critical foundational step in determining whether a permit should be granted," she wrote.

"The administrative record provided substantial evidence that demonstrates that omission of this evidence may have created an inaccurate picture of water availability and may also have caused inaccuracies throughout the entire [statutory] criteria review process," the judge wrote, calling the agency's conclusions about water availability "clearly erroneous."

"Herein lies the issue," she wrote, "DNRC's physical availability conclusion was based on a presumption that aquifer discharge measurements remained constant despite a lack of data for this finding."

Spokespeople for both the DNRC and Montana Artesian said Monday they were still reviewing the judge's decision and had no immediate comment.

The bottling plant — which would use enough water to fill roughly 350 Olympic swimming pools each year — has been tied up in litigation for more than four years with opposition from neighboring landowners, the nonprofit Flathead Lakers and a group called Water for Flathead's Future.

Seeley issued a similar opinion voiding the DNRC's permit in 2019 before Montana Artesian appealed to the state Supreme Court. And late last year, Flathead County District Judge Robert Allison upheld a ballot measure that folded the bottling plant into an agricultural zoning district to preclude certain industrial uses.

Seeley's latest ruling builds on a July decision by Flathead District Judge Amy Eddy, who found the state Department of Environmental Quality improperly granted the company a wastewater discharge permit after a review process that was "arbitrary and capricious."

Because the DNRC relied in part on the DEQ's approval of the wastewater permit, Seeley rejected the agencies' finding that the bottling plant would have "no adverse effects" on water quality.

She also found the DNRC inappropriately relied on a 2011 internal memo when assessing whether enough water was legally available to the bottling plant, violating various administrative rules.

"This 2011 memo is the agency's justification for narrowly confining the focus of its 'legal availability' analysis to include only the Flathead River and Flathead Lake, thus disregarding the many area springs, sloughs and wells which could be affected by [Montana Artesian's] year-round pumping," Water for Flathead's Future said in a statement.

Seeley's ruling voided the water-use permit and sent the matter back to the DNRC for further review.

"There has been a lot of emotion on this issue, but in the end, all we ask is that the DNRC follow the law and perform its duties responsibly and reliably," Steve Moore, a neighboring landowner and leader of Water for Flathead's Future, said in a statement. "We are grateful for the time and hard work that the court put into this well-reasoned ruling."

Assistant editor Chad Sokol may be reached at 406-758-4439 or csokol@dailyinterlake.com.