A water-use permit that’s sown years of discord in Flathead County has been voided by Lewis and Clark County District Court Judge Kathy Seeley.
In a ruling issued Tuesday, Seeley wrote that the Montana Department of Natural Resources and Conservation (DNRC) failed to follow its own rules when it granted Montana Artesian Water Co.’s request to tap the aquifer beneath Creston, on the banks of the Flathead River near Kalispell.
The company's and department's representatives declined to comment on the ruling, citing the need for more legal review. But Graham Coppes, an attorney for the plant's opponents, called it a game-changer in this years-long dispute.
“This effectively halts their legal ability to continue to bottle water because their permit has been overturned," he said. "It’s a big win for us, and I think everybody’s just thrilled.”
Since Montana Artesian first made this request in 2015, its plans for a water-bottling plant there have spawned several opposition campaigns and lawsuits. This one concerns the core of the operation. Montana Artesian had requested permission to withdraw 710 acre-feet of water per year, or about 450 gallons per minute, for bottling. An acre-foot is the amount of water that would cover 1 acre to a depth of 1 foot.
Area residents first challenged the process through the department’s contested-case hearing process in September 2017. But Hearing Examiner David Vogler found that the opponents had failed to meet “objectors’ burden to show that the proposal to grant the permit was improperly issued,” and granted the permit.
The opponents, including the Flathead Lakers and Water for Flathead's Future, appealed the decision in February 2018 in Lewis and Clark County District Court. They had raised several arguments, but Seeley focused on the aquifer tests that underpinned the department’s decision to grant the permit.
According to the ruling, state hydrologist Attila Folnagy “testified that he reviewed the (Montana Artesian) application’s Form 633” — which contains data about the aquifer that applicants must provide — “and saw it was missing data. Folnagy determined he could nonetheless conduct an aquifer test analysis by making assumptions from the data available.”
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Vogler, the hearing examiner, found that the missing information was “not material” to whether or not the permit met the criteria spelled out in state law. But Judge Seeley found otherwise.
Noting that the department had amended its own administrative rules to specify the information that water-use applicants had to submit, she concluded that “the omission of mandatory aquifer testing information and data is not a slight technical deviation resulting in no substantial injury. The application’s required minimum information is crucial to each decision made in the permit criteria analysis and granting process.
“When an agency ignores its own minimum standards required in the initial application, the resulting decisions dependent upon that information cannot stand as valid or correct."
The absence of this “foundational step,” Seeley found, meant that the water-use permit couldn’t stand. “Failure to follow the rules required for a beneficial water use permit voids the Preliminary Determination (to grant the permit) and subsequent Final Order regarding that Preliminary Determination.”
Seeley reversed Vogler’s final order, which granted the permit, from January, and remanded it “for further proceedings consistent with this decision.”
Coppes and his colleagues at Ferguson Law Office plan to draft a cease-and-desist letter soon, but “today we’re just celebrating."
But, he noted, “they’ll have a right to an appeal of the decision to the Montana Supreme Court.”
Which means that, almost four years after Montana Artesian applied for its permit, the legal wrangling could go on even longer.