By Michael Howell
The Department of Environmental Quality (DEQ) has dropped its appeal of a District Court decision issued on June 28, 2016 in which Lewis and Clark County District Court Judge Kathy Seeley sided in favor of Bitterrooters for Planning, the Bitterroot River Protection Association and the Montana Environmental Education Center and invalidated the wastewater discharge permit that the agency had issued for the Grantsdale Addition subdivision.
DEQ first issued a permit for the subdivision in 2006 but the subdivision was not developed and the permit was eventually revoked. DEQ issued the latest permit in March of 2014. It was challenged by the three non-profit organizations on the grounds that the potential negative effects on the surface water of the Bitterroot River were not considered and that no analysis of cumulative impacts was done. The subdivision is located southeast of Hamilton in proximity to both Skalkaho Creek and the Bitterroot River.
In her discussion, Seeley found that “DEQ’s failure to recognize the connection between ground water and surface water in this case is a failure to adequately protect the water quality of the Bitterroot River. This, in sum, violates DEQ’s responsibility to protect the water quality of the state.”
She also found that cumulative effects on groundwater from numerous septic discharges were well documented in the record. She said that state law requires “full consideration by DEQ of this scientific documentation regarding the effect of increased septic discharges, as well as public concerns as to the increase in residential water use and wastewater and the characteristics of the landscape (including the proximity of drinking water wells).” “Finally, DEQ did not evaluate the cumulative and synergistic effects of issuance of the permit allowing the additional sewage load of the Grantsdale subdivision. DEQ must explicitly address the cumulative impacts of issuance of this permit, other discharge permits, and other sources of nitrogen contamination to the Bitterroot River,” she wrote.
Seeley found the issuance of the permit to be “unlawful and arbitrary and unsupported by law because its conclusions were not supported by the relevant objective and scientific data in the administrative record.”
She declared the issuance of the permit to be invalid and ordered DEQ to do a full degradation review following the prescribed process.
DEQ appealed that decision to the Montana Supreme Court on September 7, 2016.
DEQ’s motion to dismiss its appeal is based on a stipulated agreement arrived at between the parties to amend the original judgment.
The force of the original District Court ruling remains in effect and both motions made by the non-profit parties are granted, while DEQ’s motion for summary judgment is denied. The issuance of the permit remains invalid. However, instead of ordering DEQ to do a non-degradation review, a detailed process is stipulated that DEQ will have to follow if it wants to reconsider the application, beginning with a reconsideration of impacts to nearby surface waters including the Bitterroot River and Skalkaho Creek, cumulative impacts, and other substantive information derived from public input.
The stipulated agreement requires the agency to issue public notice of its findings and provide direct written notice to each of the plaintiffs.
“If DEQ determines the proposed discharge results in nonsignificant changes to water quality, DEQ shall make a tentative decision to issue the Permit and provide the public with notice and an opportunity to comment on the tentative decision to issue the Permit. If DEQ determines the proposed discharge results in significant changes to water quality and the permittee decides to proceed with the proposed discharge by submitting an application for authorization to degrade, DEQ shall make a preliminary decision to deny or authorize degradation, provide public notice of its findings and direct written notice to Plaintiffs…”
“This is definitely a welcome outcome from the local perspective and is important to the valley,” said Jim Rokosch, Executive Director of Bitterrooters for Planning, “but it also sets a precedent with state-wide impacts. The impact cannot be overstated. It means that DEQ will no longer be able to look at each project it permits as an island unto itself. They will have to look at cumulative impacts.”
“It’s a major victory for the Bitterroot River,” said Ira Holt, President of the Bitterroot River Protection Association. He said having to recognize the well documented connections between ground water and surface water and analyze those potential effects is crucial to protecting the water quality of the Bitterroot River.
“DEQ can no longer simply ignore the potential impacts on surface water when issuing a ground water discharge permit because it is not being discharged into surface water,” said Holt. “In this case their own data showed that the discharge from the facility would reach the river within two and a half days.”