Judge Overturns DNRC Permit Allowing Creston Bottling Plant

Order says state legally erred when it approved facility near Flathead River

By Tristan Scott
The Department of Natural Resources holds a public hearing on the proposed water bottling plant near Creston on Sept. 19, 2017. Greg Lindstrom | Flathead Beacon

A district judge on Friday overturned a state decision allowing a Creston water-bottling facility to begin production near the Flathead River, ruling that the Montana Department of Natural Resources and Conservation erred when it granted a permit that would have allowed a company to produce more than 1 billion 20-ounce bottles per year.

The order handed a major legal victory to two nonprofit groups, the Flathead Lakers and Water for Flathead’s Future, who last year asked for additional judicial review to overturn the state’s decision.

The 20-page order came from Lewis and Clark County District Judge Kathy Seeley, who ruled on just one of the six legal objections raised by the groups and their attorneys, limiting the ruling to a single issue to make it as narrow as possible.

“Judge Seeley ruled on one issue and overturned the Department of Natural Resources and Conservation’s decision,” Graham Coppes, an attorney with the Ferguson Law Office in Missoula, said. “The court correctly said the state legally erred and that it didn’t meet its own minimum requirements. It was a total victory and we feel great about it.”

The order derails plans by Montana Artesian Water Co. (MAWC) and Egan Slough landowner Lew Weaver, who in 2015 received a permit from the Department of Natural Resources and Conservation (DNRC) that would allow his company to produce up to 140,000 water bottles per hour, 24 hours a day, seven days a week. The water right would allow Weaver’s company to receive 710 acre feet of water annually, equaling roughly 1.2 billion 20-ounce water bottles.

Neighbors to the bottling facility banded together and publicly raised concerns on multiple legal fronts, filing two complaints in an effort to prevent the facility from beginning production.

Darryl James, a spokesperson for MAWC, stated in an email that he has not had time to review the order and will provide more information next week.

A spokesperson for the DNRC did not immediately respond to requests for comment late Friday.

The company and the DNRC have 30 days to file a notice of their intent to appeal the ruling to the Montana Supreme Court, a move Coppes said was likely.

“I would assume the company will appeal, but this is a big win for us because it totally changes the tide,” Coppes said. “Whereas before we were fighting an uphill battle carrying the burden of proof to show that the state made the legal error and didn’t deserve deference, now that burden will be switched on appeal to argue why Judge Seeley erred. It was a great win.”

Coppes argued the case along with attorneys John Ferguson and Emily Wilmott, also of Ferguson Law Office.

In 2017, dozens of neighbors to Weaver and the site of the proposed bottling facility attempted to halt the project during a contested case hearing before the DNRC. During the course of the three-day hearing in Kalispell, attorneys representing around 40 objectors laid out their case against the plant, arguing that the state erred when it issued the preliminary water-rights permit after determining it would cause “no adverse impacts” to other water-rights owners in the area.

Despite those objections and the testimony of hydrology experts, DNRC upheld its decision to issue the permit.

On petition for judicial review, attorneys argued both in legal briefs and during oral arguments before Judge Seeley that DNRC’s decision violated the agency’s own administrative rules and that the bottling plant’s operations would result in a drawdown of water in surrounding wells and deplete surface water, which would in turn have an adverse effect to landowners’ water rights.

In her final order, Seeley ordered that the omission of mandatory aquifer testing information was not merely a “slight technical deviation resulting in no substantial injury,” as DNRC officials asserted.

“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,” Seeley wrote in the order. “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.”

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