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Judge rules DEQ failed to consider cumulative impacts of Creston bottling plant

Daily Inter Lake | July 28, 2021 2:35 AM

A Flathead County District Court judge has ruled the Montana Department of Environmental Quality failed to consider the cumulative impacts of the Montana Artesian Water Co. water bottling plant near Creston at full build-out when it conducted an environmental review of the plant.

Judge Amy Eddy issued the ruling July 21 in a lawsuit filed by Water for Flathead’s Future Inc., along with neighboring landowners Amy Waller, Steven Moore and Cynthia Edstrom, against the state DEQ and Montana Department of Natural Resources and Conservation. Montana Artesian is an intervenor in the case.

The ruling is the latest chapter in the ongoing litigation over operation of the bottling plant. In December 2020 Flathead District Judge Robert Allison ruled a ballot initiative to expand a zoning district in that area was fair and lawfully enacted. The initiative expanded the Egan Slough Zoning District in order to create more regulatory oversight of Montana Artesian’s bottling plant.

The legal issues in the July 21 ruling arose from a dispute under the Montana Environmental Policy Act (MEPA) concerning permits issued by the state agencies for the operation of the bottling plant.

Water for Flathead’s Future and individual plaintiffs are seeking a declaration that the DEQ’s granting of a surface water discharge permit and the DNRC’s granting of a beneficial water permit are invalid because the agencies failed to properly assess the environmental impacts of the permits as required by MEPA, according to court documents.

The state agencies counter that the court’s review of the plaintiffs’ claims “is confined because agencies are afforded broad deference” under state law and that the contested permits were issued in compliance with state law.

Montana Artesian “generally concurs” with the state agencies’ position, according to court documents.

Judge Eddy's ruling also favored Water for Flathead’s Future assertion that the DNRC did not provide for public comment on the environmental assessment for the bottling plant. Instead of taking comments, the DNRC used a checklist in its environmental review. The agency claimed it properly exercised its discretion in not providing for separate public comment and public hearings on the environmental assessment.

“While the court agrees with the DNRC’s position that its obligations under MEPA and the Montana Water Use Act cannot be interpreted in isolation — this is exactly how the DNRC conducted its proceedings under the Montana Water Use Act,” Eddy wrote. “Evidence of the environmental assessment and MEPA was excluded from the contested hearing at the DNRC’s request.”

Regarding the cumulative impacts of the plant, DEQ contents it assessed the potential direct, secondary and cumulative impacts of the permit issues and thus satisfied its statutory obligations.

Eddy wrote, however, that DEQ “limited the size and scope of its cumulative impact analysis” and thus “acted arbitrarily, capriciously and unlawfully” when conducting the environmental review.

Montana Artesian had argued the citizens organization and individual plaintiffs, all of whom own property near the bottling plant, lack standing in the case because they have not submitted standing affidavits and Water for Flathead’s Future has failed to plead associational standing.

Eddy ruled, however that because Montana Artesian’s operation of a water bottling plant “threatens to disturb wildlife habitat and scenic beauty, introduces industrial activity into a rural setting and its activities threaten water quality, in addition to diminishing the value and enjoyment of their nearby properties,” the plaintiffs meet the constitutional requirements for individual standing.

According to the court ruling, the matter is remanded back to the state agencies to correct “the deficiencies in the environmental review.” The plaintiffs will submit their requested remedies to the court by Aug. 13, while the defendants and Montana Artesian will submit any response briefs by Aug. 27.

News editor Lynnette Hintze may be reached at 758-4421 or