'Adverse effect' up for debate

The crowd had shrunk by day three of the Montana Artesian Water Company’s water-use permit hearing in Kalispell. But lawyers representing the company and its opponents remained focused on its request to draw up to 450 gallons per minute from the aquifer for a proposed bottling plant in Creston.

Objectors aimed to show that these plans will have an “adverse effect” on nearby water users.

“There can be an effect to the well owners,” said Applied Water Consulting senior hydrologist Roger Noble. “‘Is it an adverse effect?’ is the question.”

Montana’s Department of Natural Resources and Conservation answered “no” to that same question in a January 2016 preliminary determination, using data analyzed by hydrologist Attila Folnagy and supplied by Applied Water Consulting. Noble and his colleague, project hydrologist Brad Bennett, spent Thursday morning being cross-examined about their tests.

As they had with previous witnesses, the objectors’ lawyers sought to pinpoint flaws in their work — that hourly measurements had not been taken as required, for instance, or that the depth of one of the test wells had not been known. John Chaffin, lead counsel for the U.S. Fish and Wildlife Service, suggested that lapses like these could have caused DNRC to underestimate the “drawdown” near the proposed bottling facility.

“Would you agree with me, Mr. Bennett, that if the parameters used on the adverse effect analysis are wrong, there could be significantly more drawdown than predicted in Mr. Folnagy’s report?”

“If they are wrong, there is the potential for more drawdown,” Bennett acknowledged.

However, drawdown doesn’t necessarily yield an adverse effect. Water-rights specialist Nancy Zalutsky told the Daily Inter Lake last week that such an effect “is the inability to reasonably divert your water.”

The objectors and applicants remain at odds over what “reasonable diversion” means. On Wednesday, well owner Pat Nickol voiced concern that his artesian well would lose pressure, requiring him to install a pump.

But yesterday, under further questioning from Chaffin, Bennett argued that “If an artesian well loses its flow, a pump can be placed in the well such that the prior appropriator can still utilize their full water right...It’s reasonable that they can exercise their full water right.”

And many of Montana Artesian’s neighbors might not even need a pump. Nickol, under cross-examination, disclosed that he would retain 17.5 feet of “head” — the distance artesian pressure would shoot water into the air — according to DNRC’s calculations.

Objector Steve Harvey doubts those findings.

“There’s a lot of guesswork here, and that’s a big problem,” he told the Daily Inter Lake, alluding to the testing problems revealed by the hearing.

“For a plant this size...it’s unbelievable that they didn’t go to the trouble to do this thing right.”

Darryl James, a consultant hired by Montana Artesian, described that stance as “a lot of niggling over administrative details.” DNRC officials, he continued, had already testified that the agency regularly receives incomplete forms, but that the company had sent the agency enough information for a “thorough analysis.”

The man at the center of the controversy has been absent from the hearings. James told the Daily Inter Lake that Montana Artesian’s founder, Lew Weaver, was suffering health problems and advised by doctors to rest.

“I think the Weavers are confident that once we get through this process and allow everyone to air their concerns, we’ll have a measured response from DNRC and the Water Court and be able to move forward.”

The hearing concluded Thursday afternoon, but the public record remains open pending further testimony, and both parties plan to hold a conference call next week. Once the record closes, Commissioner David Vogler will have 90 days to grant, modify, or deny the permit.

His decision can be appealed to Montana District Court, a step that objectors say they expect to take.

James declined to lay out a future strategy.

“I think we need to take it one step at a time and see what happens.”

“There’s a pretty high bar to prove, on both sides, that there’s an actual adverse impact. That’s really the test.”

Reporter Patrick Reilly can be reached at preilly@dailyinterlake.com, or at (406)758-4407.