A contested water bottling plant outside Kalispell has begun operating and distributing as Flathead County grapples with how to interpret new zoning regulations the plant’s opponents say should shut it down.
Montana Artesian Water Company is stocking its water bottles at a local convenience store and at a few area offices and events under a private label.
Darryl James represents Artesian Water.
"Also working with a local distributor to try to distribute a little more broadly but still within Montana," he says.
Artesian Water holds a 710 acre-feet water right permit from the state Department of Natural Resources and Conservation. That permit is being challenged in court but the company’s been cleared to move forward. James says Artesian Water doesn’t plan to use the full extent of its right. It’s currently bottling about 30 gallons per minute, or about 48 acre feet per year.
But opponents of the bottling company say Artesian Water is operating prematurely.
Amy Waller is with Yes! For Flathead Farms and Water. Her group backed a successful ballot initiative in June to fold the plant into an agricultural zone that would bar new industrial uses.
"He [Artesian Water owner Lew Weaver] did not commercially produce one bottle until over a month after our zoning regulations were voted on by 70 percent of Flathead County voters," she says.
Waller says county commissioners should enforce the new zone and issue a cease and desist letter to Artesian Water.
But there’s confusion within county offices about whether the new zone prevents Artesian Water from operating.
Mark Mussman is the Flathead County planning director.
"We can say that this might be uncharted waters for us," he says.
Mussman says he’s not aware of another case where all the citizens in a county decided how a property owner’s land should be regulated.
He says his office, with the county attorney, is investigating whether Artesian Water should be grandfathered into the new zone, based on the plant’s scope and the licenses, permits and permissions it had in hand on June 20, the day election results were certified.
"We are trying to pursue the appropriate course of action and once we get it, we'll make a decision on what comes next," Mussman says.
Artesian Water consultant Darryl James says it doesn’t matter whether the plant was commercially operating before votes were counted or not.
"When you're that deep into the process with the vested rights that have been issued by the state, I think it's a question of what was the intended, not even intended," James says. "It’s not dreamt. It’s not envisioned. It’s the sought after use of that property that I think the county and the courts will have to lay, and how far were they from commercially distributing water that will be the question."
Members of the Egan Slough Community first petitioned Flathead County commissioners in 2016 to change the zoning of and around the bottling plant’s warehouse. Commissioners denied the change. A district judge ruled this year their denial was an abuse of discretion and ordered them to reconsider. Commissioners listened to tapes of previously recorded public comment in May but have not taken further action.
Correction: A previous version of this story incorrectly named Yes! For Flathead Farms and Water as party to a lawsuit against the Montana Department of Natural Resources and Conservation. Amy Waller is personally party to the suit, but the group she represents is not.