Two lawsuits seek to halt Flathead bottling plant

Two lawsuits seek to halt Flathead bottling plant

Source: Missoulian
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Two groups have filed lawsuits seeking to overturn a state decision that will allow the Montana Artesian Water Co. to bottle and sell around 1 billion bottles per year in the Flathead.

Flathead Lakers and Water for Flathead’s Future, both Montana nonprofits, say that the water company’s permit should have been denied, and are asking for additional judicial review to overturn a decision in January by the state Department of Natural Resources and Conservation.

Darryl James, a spokesman for the water company, said on Friday that they’re not surprised the lawsuits were filed, since people were threatening to do that before the first hearing last fall. He added that unless an injunction is issued, they’re ready to begin production in a few weeks.

“I haven’t had a chance to dig through those filings, but at the hearings there were ample opportunities for both sides to put their cases forward,” James said. “But the basis for their complaint is that DNRC used methodologies that have been in place for almost 20 years. That could affect countless applications from the past two decades and essentially close the basin moving forward. That would have a significant impact.”

The two groups argue in legal briefs that the decision to permit the water bottling plant violates the Montana Constitution, as well as administrative rules, because the state failed to use a higher standard of review since the water could be shipped out of state as unaltered groundwater.

The DNRC said the water company only needed to prove by a “preponderance of evidence” that the applicant, Lew Weaver, met the state’s criteria in approving the permit; attorneys for the nonprofits believe the standard needing to be met was “clear and convincing” evidence of no impact to their water rights.

In particular, John Ferguson, the attorney for Water for Flathead’s Future, writes that throughout a three-day contested case hearing in 2016, they “put on world-renowned experts in the fields of hydrology and groundwater modeling, highlighting the inadequacy and failures” of DNRC’s analysis of the impacts of the bottling plant on their water rights, and their experts were ignored.

“The final order has profound implications for holders of water rights in the Flathead Valley,” Ferguson wrote in the brief filed in February in Lewis and Clark District Court. “The final order overlooked the statutory mandates imposed on the department in issuing groundwater permits and ignored extensive expert testimony emphasizing the intrinsic hydrogeologic relationship between the proposed water extraction and depletion of surface water bodies in the watershed.”

He believes the hearing examiner erred when finding that while the bottling plant will result in a drawdown of water in surrounding wells and deplete surface water, it wouldn’t have an adverse effect to prior existing water rights.

Ferguson’s clients have both surface and groundwater rights that are older than those of the water company, and fear they’ll be negatively affected when the plant goes on line, without any ability to put a “call” on their water.

 Montana adheres to the “first in time, first in line” standard, meaning those with older water rights can prohibit junior rights from using water if it impacts the older rights.

The company plans to bottle about 25 to 30 gallons of water per minute, or about 1.2 billion 20-ounce water bottles per year.

Flathead Lakers, whose members include homeowners, farmers and business owners in the Flathead Valley, has worked to protect and promote aquatic resources for 60 years. Many of the members own water rights for stock, domestic and irrigation purposes that they fear will be “directly and adversely affected” by DNRC’s decision to issue the permit. They’re seeking court orders similar to those of the Water for Flathead’s Future.

“The Final Order is contrary to law, sound water management and other private policy interests that are at the core of petitioner’s interests and public service,” Jack Tuholske, the attorney for Flathead Lakers, wrote in the lawsuit.

Along with the judicial review of the final order of DNRC, Tuholske and Ferguson are asking the court to find that DNRC violated Montana’s Constitution and the Montana Water Use Act; that its final order permitting the water company was an error and abuse of discretion; and that the permit should have been denied.

DNRC didn’t return a phone call Friday seeking comment.