The Montana Artesian Water Company’s water-use permit hearing turned technical in its second day.
Attorneys from both sides spent Wednesday cross-examining scientists from Montana’s Water Rights Bureau, the U.S. Fish and Wildlife Service, and elsewhere on the hydrology of the region near Creston where Flathead resident Lew Weaver’s firm seeks to withdraw groundwater for bottling.
The location and spacing of test wells, the underground rock layers’ ability to hold and carry water, connections between aquifer and surface, and other hydrological details drew close scrutiny at the hearing in Kalispell. Together, they could determine whether Weaver’s neighbors feel an “adverse effect” in their water supply should he receive his permit.
Mathematical models help scientists analyze these different conditions and predict how the water supply will respond to changes. Each side spent much of Wednesday’s hearing critiquing the other’s model.
In January 2016, the Montana Department of Natural Resources stated that no adverse effect was likely — and issued a preliminary determination to grant the permit — based on analysis performed by Attila Folnagy, a hydrologist at Montana’s Water Rights Bureau.
Folnagy had modeled the aquifer using data provided by Montana Artesian, and a solution developed by Shlomo Neuman and Paul Witherspoon in 1969.
John Ferguson, lead counsel for the non-FWS objectors, began by asking Folnagy to read one of the authors’ recommendations for the model: “Our new method requires observation wells to be placed not only in the aquifer being pumped, but also in the confining layers above and/or below.”
“Did [Montana Artesian] adhere to Dr. Neuman’s advice regarding the number and screening depth of observation wells?”, he asked Folnagy.
“Did your office review this paper and request such observation wells to be installed?”
He then asked if he knew Neuman had recommended more than one observation well.
“I probably haven’t read this paper since college,” Folnagy replied.
His procedure had apparently not convinced Neuman, who was deposed before the hearing. Ferguson asked Folnagy, “Are you aware that Dr. Neuman found your use of his Neuman-Witherspoon solution to be a misuse of it and it didn’t apply?”
“I’ve heard that, but I’ve not reviewed it,” Folnagy answered.
Rick Tappan, one of Montana Artesian’s attorneys, sought to put these flaws in perspective.
“Do you have an unlimited selection of solutions by which to model [groundwater] drawdowns?”, he asked Folnagy.
The hydrologist estimated he had between three and 10 for different types of aquifers.
“Is the Neuman-Witherspoon the best fit for these aquifer conditions?”
“That was my determination for an aquifer test report,” Folnagy replied
The permit application’s objectors put more stock in a model developed by Willis Weight, a professor of engineering at Carroll College. In his opening remarks Tuesday, Ferguson said that “Dr. Willis Weight has created what may quite possibly be the most sophisticated 3-D numerical groundwater flow model for the Flathead Valley, that will show that sources other than Flathead Lake and River will be impacted and adversely affected.”
Weight gave testimony in support of that conclusion, joined by hydrologist Tom Maddock from the University of Arizona, and Nevada-based hydrological consultant Tom Myers.
”Anyone else’s well, whether it be artesian or whether they pump, you are going to lower that pressure,” Myers said.
But Montana Artesian’s attorneys questioned whether Weight’s model can be relied upon to show an “adverse effect.” Under cross-examination, Weight acknowledged that, “If I were going to publish the model, I would do additional work,” but that he considered it “complete enough” so that he could “answer the questions to my satisfaction” when he prepared his testimony.
During a break in the daylong hearing, Montana water specialist Lamont Kinkade voiced doubts about both sides.
“You have to give the objectors credit for their tenacity, [but] I’m not certain they have sufficient information. DNRC didn’t have quite all the information” either, he said.
More details could come to light Thursday, when the hearing is expected to conclude. But in his experience addressing water-rights issues, Kinkade has found certainty elusive.
“If you look at the statute specifically, it’s almost requiring an absolute count of the number of angels that can dance on the head of an invisible pin.”
According to his research, he continued, “nobody’s ever drilled to the bottom of this aquifer, so we don’t know how big the head of the pin is.”
The hearing will resume at 8 a.m. on Thursday, Sept. 21. It is being held at the Fairbridge Inn and Suites, at 1701 U.S. 93 South in Kalispell. Members of the public are welcome, but there will be no public participation session. Seating is available on a first-come, first-serve basis.
Reporter Patrick Reilly can be reached at firstname.lastname@example.org or at 758-4407.