County reaches solution on groundwater issue

by Michael Howell

The Ravalli County Board of Commissioners and members of the Ravalli County Board of Health came to a consensus last week on how to handle this year’s groundwater monitoring results. 

The Board of Health made an initial decision in May not to accept this year’s groundwater monitoring results based on a Montana Department of Environmental Quality Administrative Rule (DEQ 4) allowing the “reviewing authority” to refuse to accept groundwater monitoring reports when the snowpack was less than 75% of the 30-year average. The decision called for continued monitoring throughout the season and allowed for landowners to appeal and potentially have their results accepted due to mitigating conditions.

The logic behind the decision was that unusually low snowpack levels may lead to low groundwater levels and septics approved based on these low groundwater levels would not meet the criteria for septic installation once the drought passed and water levels returned to “normal.” There is no precedent on record for snowpack levels being as low as recorded this summer in Ravalli County and drought conditions have been declared in the county.

This decision was called into question, however, by a County Attorney opinion that the Board of County Commissioners was the actual “reviewing authority” and not the Board of Health. Although the Board of Health had historically made this decision annually, the County Attorney argued that since adoption of House Bill 121 by the 2023 legislature the law had changed, making the Board of Commissioners the deciding authority.

This raised additional questions among members of the Board of Health, however, who wondered if this meant that the Commissioners were going to make decisions about variances and appeals. The Commissioners balked at this prospect and sought further clarification from the County Attorney. A second opinion was presented stating that matters of appeal and variance requests would remain under the authority of the Board of Health. 

At a meeting of the Board of Commissioners on July 9, the County Commissioners heard from Representative David Bedey, sponsor of HB121, about the intentions of the bill and the change in the law.  

Bedey said that he was in agreement with the county attorney in his second opinion that the Board of Health had the power to make decisions about variance requests and appeals, but he disagreed with the opinion that the Board of Health was not the reviewing authority in this particular case under DEQ 4. 

According to Bedey, it was never the intention of the legislature to remove all authority from the Board of Health. He said HB121 modified powers and duties but it made very little changes to the statutes.

“The principle here,” said Bedey, “is that elected officials make policy and regulatory decisions and the Board of Health implements and enforces those policies and regulations.” He said in this case, in his opinion, the Board of Health was implementing and enforcing a regulation, not making regulations or policy.

“As it stands today, I’ve read the law and the regs and DEQ 4 and as far as I can tell, I don’t see anything untoward in actions of the Board of Health,” said Bedey. “I’m not addressing the outcome of the decision, but that they can make a decision. I think they can.”

Commissioner Greg Chilcott suggested that the issue of who the “reviewing authority” is under the law and the intention of HB121 could be put aside if the County Commissioners and members of the Board of Health, who were all present, could come up with a consensus on how to deal with the groundwater results this year.

Commissioner Jeff Burrows presented an option that was tweaked through discussion and they were able to arrive at a full consensus. The motion, adopted by the County Commissioners and agreed to by all members of the Board of Health, was to add 6 inches to the groundwater level results obtained this year and use those numbers to determine which results could be accepted or not. This decision was based on some initial results presented by the Environmental Health Department indicating that groundwater levels this year in pipes that were checked last year were showing peaks about four inches lower than in the preceding years. The decision to add 6 inches instead of just four to this year’s results was made “out of an abundance of caution” to protect the aquifer.