A Flathead County judge has ruled that two state agencies improperly assessed the environmental impacts of a proposed water-bottling plant in Creston and failed to facilitate adequate public comment before granting permits for the project.
The lawsuit was filed in Flathead County District Court on Nov. 7, 2017 by Water for Flathead’s Future Inc. (WFF) and Flathead County landowners Amy Waller, Steven Moore and Cynthia Edstrom against the Montana Department of Environmental Quality. The Montana Department of Natural Resources and Conservation (DNRC) was added as a defendant in March 2018, while the Montana Artesian Water Company (MAWC) was added as an intervener in February 2021.
The latest July 21 ruling by Flathead County District Court Judge Amy Eddy stems from a dispute over permits issued by DNRC and DEQ under the Montana Environmental Policy Act (MEPA) to the MAWC bottling plant.
In 2015, Egan Slough landowner Lew Weaver requested a permit from the DNRC to allow his company, MAWC, 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.
In January 2017, DNRC granted a Beneficial Water Permit to MAWC, and later that year DEQ granted a Montana Pollutant Discharge Elimination System surface water discharge permit.
The lawsuit alleged that the agencies failed to properly assess the environmental impacts of the requested permits, specifically that DEQ was “willfully ignorant of the projected size of MWAC’s bottling plant,” and that the environmental assessment conducted by DNRC “denied the public a meaningful opportunity to comment and failed to evaluate the full impacts of MAWC’s proposed water bottling facility on the environment.”
Under MEPA, state agencies must prepare a detailed environmental impact statement using an environmental assessment and seek adequate public input on the assessment. Judge Eddy ruled that DNRC did not provide the public with adequate opportunity to comment on the environmental assessment.
“Perhaps had the DNRC properly engaged in this process prior to determining the Application was ‘correct and complete,’ it would have realized the aquifer testing was missing, as pointed out in numerous comments, and made appropriate adjustments in the beginning of these proceedings,” Eddy wrote.
In regards to the DEQ permit, Eddy stated that DEQ failed to “take a ‘hard look’ at the environmental impacts” of issuing its permit, specifically failing to address concerns raised by other state agencies, ultimately acting “arbitrarily, capriciously and unlawfully.”
The decision by the court requires DNRC and DEQ to correct the problems with their respective environmental reviews, and WFF is required to submit a briefing on requested remedies by Aug. 13. The defendants and MAWC will submit response briefs by Aug. 27.
A co-issue in the ongoing litigation involves the land uses allowed under local zoning rules, which is at the heart of an adjacent lawsuit.
In November 2020, a citizen-driven ballot initiative to expand the Egan Slough Zoning District created in 2002 as a way to preserve the land’s agricultural character passed by 70% among Flathead County voters. The zone prohibits most industrial uses, including the bottling plant, which is situated within the initiative’s newly expanded boundaries.
In December, Flathead County District Judge Robert B. Allison issued a final ruling that the initiative is legally enforceable, following previous court decisions that the initiative cannot be considered “reverse spot zoning; and that it did not constitute the ‘taking’ of a private property interest under the state’s constitution.”
That lawsuit, filed by the Egan Slough Community, YES! For Flathead Farms and Water, and Amy Waller against the Flathead County Board of Commissioners, is currently pending before the Montana Supreme Court.