Anyone who knows Montana recognizes that the state is staggeringly rich in resources – natural resources that is – and there is a long history of managing them for economic growth and prosperity. Timber, copper, coal, gold and water are all on the docket for continued use and extraction under the state’s economic orientation.
To promote fair use and prevent environmental degradation, however, many levels of government are tasked with regulating extraction industries. Such regulation aims to strike a balance between values such as economic welfare and ecosystem health. Even in the presence of good policy, however, conflicts can arise.
One such conflict involves water in the Flathead Valley of Northwest Montana, where a four-year battle pits a company’s right to bottle and sell Flathead water against community members seeking guidance from science about their watershed’s extent and limits.
On January 14, 2016, Montana Artesian Water Company (MAWC), a water bottling company located just south of Kalispell, was preliminarily granted a permit to pump water from a 222-foot well for commercial use. In the permit, the Montana Department of Natural Resources (DNRC) allowed for year-round pumping of a proposed 710.53 acre-feet of water.
A DNRC administrative document details that a proposed 588.08 acre-feet of the water may be used directly for bottling – that’s about 290 Olympic-size swimming pools per year (commonly measured at two acre-feet) – while the rest of the allotment is to be used by staff, to rinse bottles, or be discharged.
The DNRC document states that MAWC intends to use up to twenty machines capable of filling 20-ounce bottles at a rate of 7,000 per hour. With round-the-clock daily production, MAWC would fill 1.2 billion bottles of water per year.
According to company spokesman Darryl James, the company’s owners, Lew and Larel Weaver, do not intend to use the full extent of their permit.
“The Weavers have said repeatedly they have no intention of building that size ability in that area. While they have the ability on paper to pump that volume of water, they are not set up to use that much,” James explained.
According to the MAWC website, the current facility has the capacity to bottle approximately 25-30 gallons of water per minute, and the company’s intent is to run the plant ten hours per day, five days a week. This would fill 18 million bottles a year.
On January 27, 2016, DNRC posted notice of the permit in the Daily Interlake, a newspaper based in Kalispell. The permit received 75 objections from numerous individuals and groups, including members of the Flathead Valley community, the Confederated Salish & Kootenai Tribes, the U.S. Department of Interior ‘s Fish & Wildlife Service, and private companies.
A group, Water for Flathead’s Future, organized to question the state agency’s decision to permit the water-bottling operation. The group’s chairman, Steve Moore, said he shared a concern with other community members about the long-term impacts of the plant. They worried whether enough scientific evidence was being employed to provide accurate forecasting and if the DNRC’s models of water flows in the Flathead Valley were adequate.
“In the Flathead, there’s a misconception of an infinite, endless supply of water that can be extracted with impunity,” Moore said.
By late 2017, the DNRC proceeded with hearings to evaluate concerns. Court documents later revealed that the meeting was “perhaps the most contentious administrative hearing conducted by the DNRC in its 45 years of administering the Montana Water Use Act.”
According to administrative documents, the DNRC and objectors to the bottling plant collectively determined that pumping the MAWC well would result in drawdown of water in surrounding wells and depletions to surface waters but disagreed on the consequences of those effects. The Department ultimately concluded there to be no adverse effects in preserving MAWC’s permit.
In 2018 lawsuits challenged the DNRC’s decision. Lewis and Clark County District Judge Kathy Seeley ruled against the DNRC on March 29, 2019. The decision was appealed to the Montana Supreme Court, which overturned the ruling, tossing the lawsuit back to the lower courts. Judge Seeley was set to review the remaining legal issues in 2020, but testimony has yet to be scheduled.
Moore, along with nine other individuals and the non-profit organization, Flathead Lakers, Inc., are still litigating against the Montana DNRC and MAWC, disputing the legality of the water permit.
“Because of the nature of this, there are competing sides,” Moore says explaining his position amongst petitioners. “Our idea is if one is going to bottle the resources, mine the gold, dig out the sand, that they have to follow the rules.”
Conflicting Values: Behind Both Sides
The complexity of the case circles around the challenge of perfectly understanding the flow of water in the Flathead Valley. This part of the state is widely known for its pristine aquatic amenities stemming from ancient glacial melt and plenty of snow runoff.
Underground layers of water called aquifers contain vast amounts of the "liquid gold." Three aquifers are at play in the Flathead Valley. A shallow aquifer underlies the ground’s surface and an intermediate aquifer lies beneath that. These two water bodies interact often due to the presence of permeable rock such as gravel or silt.
Underneath the two upper aquifers is a layer of clay. This layer ranges in thickness but is estimated generally to be hundreds of feet thick. Finally, there is the third aquifer, a massive feature that may be thousands of feet deep.
The pumping well utilized by MAWC stretches into the earth nearly three quarters the length of a football field and hits the third and deepest alluvial aquifer. Moore and his allies have serious concerns regarding the implications, though larger water permits exist in the area for agricultural purposes.
“The problem is not just the amount that it takes out but the duration, and that it takes water out perpetually. It does not give the aquifer a chance to recharge – that’s where all the problems arise,” Moore says. “The farm irrigation system extracts a lot of water over a short period of time.”
DNRC internal administrative documents reveal the agency is not completely satisfied with the method used to model properties of the deep alluvial aquifer. The DNRC, however, moved forward, employing this method as it was the best means available.
Expert witnesses on all sides were called upon to describe the colossal third aquifer and translate what its likely size and extent means for water policy decisions.
In a deposition, DNRC Hydrogeologist Russell Levens testified that undertaking an extensive groundwater analysis is not typically required for water right cases, “particularly in areas where there are not established water availability issues, like the Flathead.”
Earlier, the questioners of the bottling plant had recognized their need for scientific expertise. “We needed something other than everyone getting angry and raising their fists. We needed something quiet and substantial that could be presented, and everybody could believe it,” said Moore.
Water for Flathead’s Future decided to consult with Dr. Willis Weight, a recently retired environmental engineering professor at Carroll College and a practicing hydrologist with his own consulting company. To investigate the aquifer for themselves, the group decided to bankroll Weight in building a numerical groundwater model through computer programming.
“Groundwater model systems do a good job incorporating all the information to make better policy decisions,” explained Weight in an interview. “You have the river systems moving rivers around the footprint of glacial activity in the valley and then you have lake impact. It was a very complex project.”
To construct the model, Weight used publicly available data that is recorded when new wells are dug and they are tested for stress to the overall underground water system. That data is stored at the Montana Bureau of Mines and Geology in Butte.
For his model, Weight mapped eight geological layers of the Flathead Valley, along with lakes, rivers, and other tributaries. This enabled Weight to build a 3-D map of the underground layers of water and geology that he said could test different scenarios of water extraction. He said this could assist researchers and policy makers to understand, for example, if a new well would impact a nearby spring.
Weight was able to map out the thick layer of clay separating the deep alluvial aquifer and see how well it contained the water underneath the Flathead Valley. “The original thought was there was a confining layer separating aquifers. I found very big windows and holes where that wasn’t the case at all,” Weight said.
The cost of the model was over $100,000 to Moore and his colleagues. Weight believes he is the first to take on this complex work. Weight’s model was not used by the DNRC, however. Administrative documents indicate that a lack of thorough review by the agency raised questions about the acceptability of using Weight’s model for decision making.
Although it is common for scientists to be hired as expert witnesses during legal disputes, Weight said the request for the model was unique.
“It’s unusual for a public group to commission science like WFF has,” Weight said. “They were willing to put up resources to make sure everything is fair and equitable.”
Weight’s work modeling the Flathead Valley has not yet been made public or been peer reviewed. It is currently being housed by Core Water Consulting in Kalispell, but WFF Chairman Steve Moore said he wants the model to be released to the public.
“The whole idea is not to keep the model private but make it available to the public so they can learn and plan with it,” Moore said. “We want scientific basis for public policy in the county.”
MAWC spokesman Darryl James said he gives credit to the group for attempting to build a model but explains that MAWC has followed the rules in gaining the water permit.
“They’ve done everything by the book,” said James.
James explained protections exist in the law if there is a deleterious impact to a prior water right, but MAWC’s pump testing did not suggest that was going to happen. “The recharge rate was extraordinarily high.”
James said the Weavers were not prepared for the opposition to the project.
“Everyone loves the Flathead, if you think of spoiling that in some way it causes alarm,” James said. “I think it would be the magnitude of the project that has blown out of proportion. People don’t understand the volume of water that flows through the valley. This is an extraordinarily small fraction of water.”
MAWC’s website expands on this idea: “Wheat is Montana’s number one export, with nearly 75% being exported to Asian markets. But did you know that it takes about 150 gallons of water to produce one pound of wheat?”
Continuing Scientific Investigation
DNRC administrative documents outline the current understanding of the massive flow of water through the Flathead Valley. An estimated water budget for the area leaves 190,000 acre-feet unappropriated each year.
While DNRC officially does not comment on matters currently in litigation, Melissa Schaar, Hydro-Sciences Supervisor at the agency, said no changes have occurred to the permitting process since the MAWC permit was approved.
In a recent action that has not been confirmed to be connected with the lawsuit, however, DNRC hired private contractor Aquaveo, Inc. to construct numerical groundwater models of the Flathead and Billings Aquifers as part of a pilot project for a web application tool.
Schaar noted that Dr. Weight consulted with Aquaveo on the development of the Flathead model. In a separate interview, Weight said that he helped the firm construct a simpler model than the one built for litigation against the DNRC.
For the 2019 fiscal year, DNRC applied to the Montana Ground Water Steering Committee, a bureaucratic group mandated by the Montana State Legislature, to investigate the East Flathead region. The steering committee takes applications on an annual basis for Montanans and state agencies to investigate water resource questions.
The DNRC application stated that the effects of groundwater withdrawals from the shallow aquifer and the deep alluvial aquifer are not clear in the Flathead Valley, and that more needs to be known about the connectivity of the aquifers. The document proposed that a groundwater model be produced that incorporates complex boundary conditions, multiple aquifers, and surface water connections.
The committee approved the request and the DNRC’s project was placed in the hands of the Groundwater Investigation Program (GWIP) at the Montana Bureau of Mines and Geology.
GWIP was created to conduct the research of hydrogeologic issues and it supports science-based water management in Montana. The Bureau of Mines and Geology has been assessing groundwater in Montana since the 1980s, but it’s a big state, and much remains unknown about subsurface geological conditions.
“Essentially we are surveyors providing geologic and water resource information to the State of Montana,” said GWIP Manager Ginette Abdo, who also explained how the non-regulatory nature of the department means the science it produces comes from a non-biased point of view.
Although the study involves more research and data collection than Weight’s commissioned model, it encompasses similar work. Ginette Abdo said that Weight was consulted prior to starting her department’s project, “The East Flathead Groundwater Investigation.”
“What we try to do is gather up all existing information so we’re not reinventing the wheel. We’re all invested in best science,” said Abdo.
GWIP Flathead site lead and Senior Hydrogeologist Andy Bobst said the study is conducted by gathering well sites and surface water sites to monitor water flow. The site will be periodically monitored through December, 2020 and Summer, 2021 and will lead to more drilling and the installing of aquifer test sites.
“We need to know basically a 3-D understanding of the confining [clay] layer which may not be present everywhere,” Bobst said. “We try to better understand the physical system so that people can make more reasoned decisions. Water allocation is never going to be simple, and the aquifer doesn’t care too much why the water is being pumped out.”
The dimensions of the clay container of the deep alluvial aquifer in the Flathead Valley will soon be demystified through increased scientific research and publication. GWIP normally holds public presentations about the science it is conducting, but recently the department has not done so due to COVID-19 restrictions.
According to University of Montana Economist Katrina Mullan, conflict over natural resources is not only likely, but inevitable, and particularly so when it comes to water. “As water becomes more scarce because of climate change and increased demands, then those conflicts become more intense.”
Mullan said that environmental concerns can be alarming for people and that they sometimes are at odds with economic priorities, explaining that perceptions of water scarcity could be impacting the conflict over the Flathead Valley water-bottling project.
“In other parts of the state there is greater water scarcity, so the perceptions in this area could be correctly or incorrectly seeing scarcity in other places and recognizing that as a potential future,” Mullan said.
—Geneva Zoltek
This article originally appeared in the November 2020 issue of Montana Press Monthly.
Photos by Sara Diggins and Geneva Zoltek.