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Flathead River

The sun rises over the Swan Range and Flathead River just south of Kalispell.

Opponents of a water-bottling plant near Kalispell are claiming victory after their ballot initiative passed Tuesday.

Flathead County voters overwhelmingly approved ballot initiative No. 17-01, which expands the agricultural Egan Slough Planning and Zoning District to cover the hotly debated Montana Artesian Water Co. bottling facility.

With 70 percent of votes backing the initiative, one of the effort’s leaders, Amy Waller, called it a “landslide.”

“The community came together to protect our water from the bottling plant,” she told the Missoulian in an email.

But the controversy will continue to rile Flathead County. The effort to stop the bottling plant now spans multiple agencies, laws and regulations, and Tuesday's vote stirred new disputes about how they're applied.

Montana Artesian founder Lew Weaver's plans for a local bottling plant became public in early 2016. His firm has completed a 10,000-square-foot facility on the banks of the Flathead River, in the agricultural region southeast of Kalispell. According to Montana Artesian spokesperson Darryl James, the plant is operational, and only needs final health approvals before it can start bottling.

The company holds a permit to withdraw about 710 acre-feet of water per year, approximately 450 gallons per minute, from the underlying aquifer. (An acre-foot is the amount of water required to submerge an acre of land to 1 foot.) However, a separate permit to discharge wastewater currently limits its operations to a much smaller scale, about 30 gallons per minute. James said the existing facility is geared towards that production volume.

Residents of the surrounding farmland have come to dread environmental consequences that they think the plant — especially a future, expanded version that uses more of the water allotment — could have. Over the past two years, they’ve raised concerns ranging from a lower water table to increased truck traffic, and pursued several lines of regulatory attack against Montana Artesian.

One of these was an effort to expand the Egan Slough Planning and Zoning District to include the property. A water-bottling plant would likely run afoul of the district’s rules, which aim to “control the scattered intrusion of uses not compatible with an agricultural environment.”

In 2016, Egan Slough residents petitioned the Flathead County Commissioners to expand the district. The petitioners were denied, but they sued, and this past March won a judge’s order for the commissioners to reconsider the matter.

As that campaign unfolded, a group called Yes! for Flathead Farms and Water gathered enough signatures to put the issue on the ballot. Their initiative, numbered 17-01, aimed to expand the Egan Slough Planning and Zoning District by 530 acres.

In the weeks leading up to the vote, its backers cast it as a necessary defense against the bottling plant. Yes! for Flathead Farms and Water’s website called on voters to “keep the water bottling plants out of our valley!” The group’s signs cropped up along local roadways and front lawns, and it received more than $52,000 in contributions, according to the Montana Commissioner of Political Practices.

But the initiative also had opponents. The Kalispell Chamber of Commerce called it “fundamentally unfair to spot zone a small area for an otherwise allowed and legal use, after a property owner has received their government approvals.”

This stance proved a minority among Flathead County voters, who approved the expansion by 40 percentage points. In a sign of the issue’s potency, the initiative received more than 25,000 total votes — the county’s largest response to any local, state or federal race.

“We are elated and grateful to all of our volunteers and to the 17,527 voters of Flathead County who passed the Egan Slough Initiative,” wrote Waller, one of the group's co-founders.

Darryl James conceded that it had been “a very successful campaign on the part of the opposition, but one that we certainly see as based on fear and misinformation, and I think they did a very effective job as painting Mr. Weaver as the bogeyman.”

Not all has been settled by the vote. The various groups involved don’t concur on the path forward.

The ballot initiative stated that, if approved, the new acreage “would be immediately added to the Egan Slough Zoning District.” Kalispell attorney Tom Esch, who has represented Amy Waller and her husband John, sees that happening. “I expect the election to be certified, I expect the zone to be expanded, and I expect the existing rules to apply,” he told the Missoulian.

But Deputy County Attorney Caitlin Overland argued that the Flathead County Commissioners, who turned down the petition to expand it, still have a say.

“The commissioners have a role in setting regulations based on the expansion of a zoning district, [and] there’s steps that they will need to take in furtherance of this initiative,” she said. “I can’t tell you with certainty when it’s going to occur. We are still in discussions to the commissioners as to what the next steps are.”

And even if the expansion proceeds, the plant could survive. The district's regulations state that any nonconforming land use “may continue in the manner and to the extent that it existed or was being used at the time of adoption of these regulations.”

“Mr. Weaver’s facility is existing, [and] the plant is operational,” James said. “There’s no reason from our perspective that the county could or should view it as anything other than a grandfathered use.”

Esch disagrees, arguing that while the plant is operational, “It’s not operating. He hasn’t produced one bottle of water, so it’s not grandfathered in.”

This isn’t the only process raising such minute questions about the bottling plant. The Flathead County Commissioners remain under a court order to reconsider the expansion petition, a task that Overland declined to comment on. Meanwhile, a separate group, Water for Flathead’s Future, is suing the Montana Department of Natural Resources and Conservation in Lewis and Clark County District Court, alleging that it erred in approving the company’s water-use permit.

But as these efforts grind on, their backers now have more reason than ever to claim public support.

This is an overwhelming mandate,” Esch said of the vote. “The people have spoken, and they cannot ignore this voice.”

Patrick Reilly covers the Flathead Valley for the Missoulian.

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