Claiming that the state agency continues to use an internal memo to avoid state law when permitting new wells, two Flathead Valley nonprofits are suing the Montana Department of Natural Resources and Conservation.  

Citizens for a Better Flathead and Water for Flathead’s Future filed a lawsuit in Lewis and Clark County District Court in Helena alleging the state agency continues to illegally perform insufficient analysis of how proposed deep aquifer wells in the Flathead could negatively impact existing water users and rights holders. The suit was filed July 26. 

“When DNRC ties its own hands and refuses to develop best available science on new groundwater permits in the Flathead Valley it threatens everyone with an interest in secure water supplies, property rights, healthy rivers and sustainable land use,” the nonprofits said in a statement.  

The groups point specifically to a memo used by the agency they say limits the evaluation of adverse impacts during consideration of new groundwater permits in the Flathead Basin. The lawsuit points to an internal memo from 2011 that says staff should only consider the impact to the Flathead River between Columbia Falls and Flathead Lake when determining impacts of proposed wells.  

The Department of Natural Resources and Conservation is relying on the same memo that was part of a Montana Supreme Court decision in May 2023 when the court ruled that the agency erred in issuing a permit to Montana Artesian Water Company because it did not conduct a valid scientific analysis for a proposed expansion for the company’s water-bottling plant. The high court upheld a decision in a prior lawsuit against the Department of Natural Resources and Conservation ruling that the agency erred when failing to consider more than just the Flathead River in the potential impacts of the facility saying the agency improperly “treated the memo as conclusive evidence that only Flathead Lake and River could be affected by [Artesians’s] operation.” 

The nonprofits are represented by attorneys from Ferguson and Coppes of Missoula and Alsentzer Law Office of Bozeman.  

The current lawsuit argues that the department is shirking its responsibility to safeguard the area’s water resources by permitting new large capacity wells without performing the legally mandated analysis required by state law. Despite the Supreme Court ruling, it claims the agency has continued to use the memo to approve new groundwater permits and disregard potential impacts.  

“DNRC has continued to circumvent its legal responsibility to protect the rights and privileges of Flathead Valley residents by failing to fully analyze the rapid increase of new wells and their impacts on prior water rights holders and surface waters throughout the valley, the protection of which is required by law,” the groups said in a statement. “The suit also points out that the use of the memo allows the DNRC to avoid the necessary evaluation of a new well as it relates to water quality deterioration." 

The lawsuit alleges that the state agency used the same memo to disregard the potential impacts of recently proposed wells, including the approval of a roughly 222-acre-foot groundwater diversion, at up to 360 gallons per minute, for irrigation and water hazard at Meadow Lake Golf Course applied for in 2021.  

The lawsuit says the department relied on the memo more recently for the permitting processing for a planned subdivision north of Somers and therefore erred by not analyzing the impacts of the subdivision’s water usage on existing water rights and usage from water in the area beyond the Flathead River. The Cooper Farms subdivision proposes diverting up to about 331-acre-feet of water annually at a rate of 300 gallons per minute for residential and commercial use for a 700-unit subdivision.  

The groups, along with the North Shore Water Alliance, filed an objection to the Cooper Farms well. That has yet to be settled, but the groups filed the suit, according to court documents, because objections to the golf course permit failed.  

The nonprofits say in the suit that the Department of Natural Resources and Conservation continues to rely on the same guidance in the memo despite the Supreme Court ruling that its “methodology was legally and scientifically erroneous.”  

The groups are asking the court to stop the agency from using the memo to approve new groundwater permits in the Flathead Valley. The suit alleges that the state agency’s use of the memo to process new water rights applications is contrary to the requirements of the Montana Water Use Act and Montana Administrative Procedures Act.  

The Water Use Act requires the department to consider other surface water sources that could be impacted because of wells, but by limiting the agency’s analysis only to the impact on the Flathead River the memo violates the state Water Use Act, according to the lawsuit.  

The groups argue that the memo is invalid because it was not created through the process of the Montana Administrative Procedures Act which then deprives the public of its right to know and participate in government decisions.  

Continued reliance on the memo, the lawsuit argues, allows the department to issue new permits for groundwater wells without the agency having a “defined knowledge of the groundwater budget for the aquifer" while “denying the right to know and participate in the government’s decisions to give away and unreasonably deplete groundwater resources from future generations.”  

Deputy Editor Heidi Desch may be reached at 758-4421 or [email protected].