On Monday, May 16, Helena District Court Judge Mike Menahan ruled in favor of the non-profit organizations Bitterrooters for Planning (BfP) and Bitterroot River Protection Association (BRPA) in their case against Montana Department of Environmental Quality (DEQ) over the groundwater discharge permit that was issued on November 17, 2014 to local realtor Lee Foss. Both organizations were represented by Missoula attorney Jack Tuholske.
The permit was for discharge from a wastewater treatment system designed to serve an unidentified retail store at Blood Lane south of Hamilton. Although construction has not begun, the application states the facility will be a 156,159 square foot “retail merchandise and grocery sales” facility. Foss refused to disclose who the real operator was going to be, but it was rumored to be Walmart. DEQ did not require the disclosure of the eventual operator.
The non-profit organizations challenged DEQ’s decision to issue the discharge permit claiming DEQ violated the nondegradation provisions of the Montana Water Quality Act regarding nitrogen pollution; failed to consider potential cumulative impacts of the groundwater discharge, in violation of the Montana Water Quality Act; violated MEPA; and violated the public’s constitutional right to participate.
The Judge dismissed the final count concerning the constitutional right to participate because it was filed after the 30-day statute of limitations for filing such objections. But Menahan found in favor of the organizations’ claims on all the other counts and voided the permit, reversed the agency’s decision, and remanded it back for reconsideration.
In issuing the permit, DEQ found the groundwater discharge was exempt from nondegredation review under the Montana Water Quality Act because it would not significantly change groundwater quality or surface water quality of the nearby Bitterroot River and its tributaries. But as Menahan points out, DEQ only satisfied one of the two conditions required.
Montana law, he notes, “directs the Board of Environmental Review to establish rules providing that “changes of nitrate as nitrogen in ground water are nonsignificant if the discharge will not cause degradation of surface water and the predicted concentration of nitrate as nitrogen at the boundary of the ground water mixing zone does not exceed 7.5milligrams per liter (mg/L).” He found that DEQ may have met the second condition, but it did not meet the first because it failed to analyze the potential effects on the river.
DEQ’s response to the public’s concerns about potential impacts to the river was simply to state that it was issuing a permit for a point source discharge into groundwater not a permit for discharging into surface water. They did not examine the potential impacts of that groundwater on the river.
“When a party raises a credible concern of a nexus between discharged groundwater and adjacent surface water, the DEQ must examine possible impacts groundwater discharge will have on surface water before declaring the discharge nonsignificant. In the present matter, Bitterrooters raised a credible concern by providing DEQ a Montana Bureau of Mines study which demonstrates a connection between groundwater and surface water near the proposed facility,” wrote Menahan. He also notes that DEQ’s own investigation of the site hydrology indicates a similar connection between ground and surface waters.
Although the law does not require DEQ conduct a full nondegradation review in every case, “DEQ does need to examine impacts from groundwater discharge upon surface water when a party raises a credible concern of a connection between ground and surface waters,” wrote Menahan.
He added, “The Water Quality Act is a reasonable implementation of Montana’s constitutional right to clean and healthful environment, which is anticipatory and preventative and does not require that dead fish float on the surface of our state’s rivers and streams before its farsighted environmental protections can be invoked.”
Menahan also found that DEQ violated Montana law by simply examining the installation of the treatment system itself and not examining the potential effects of the proposed retail store.
As stated in the ruling, “The main purpose of issuing the Permit is to authorize construction of the proposed retail facility on the Blood Lane Property. Construction of the facility is neither speculative nor indefinite – it is a secondary impact ‘stimulated or induced by or otherwise result[ing] from a direct impact of the action.’ Thus, DEQ must consider impacts from constructing and operating the facility,”
“Although there is no statute or administrative rule requiring state agencies evaluate indirect effects under MEPA, MEPA does require agencies evaluate secondary impacts. Because the requirements are similar, the Court finds federal authority persuasive on this issue. Montana agencies must consider secondary ‘impacts of an action, even when control of the ultimate decision lies with local entities,” he wrote.
“When it reconsiders Foss’s application,” he wrote, “DEQ must compile relevant information, for its own use as well as for the public’s use, and must consider all pertinent data. DEQ must identify the facility operator if the operator’s identity has the potential to impact vegetation, aesthetics, human health and safety, industrial and commercial activities, employment, tax revenues, demand for government services, or other environmental resources.”
Menahan found that DEQ also failed to do a cumulative analysis of the impacts. DEQ claimed that the requirement for a cumulative analysis was “discretionary” and that considerations of cumulative impacts were implicit in its “mass balance formula”. Menahan found the use of the formula “insufficient” because the law does not allow “mere analysis implicit in an EA… The public is not benefited by reviewing an EA which does not explicitly set forth the actual cumulative impacts analysis and the facts which form the basis for the analysis.” He found that DEQ’s failure to exercise its discretion “violates the spirit of the rule and constitutes an abuse of discretion.”
Menahan concluded, “DEQ failed to consider explicitly cumulative impacts of the Grantsdale subdivision and failed to consider secondary impacts necessitated by constructing and operating a large retail facility. DEQ’s decision also violates the Water Quality Act. DEQ failed to consider impacts to nearby surface waters and the cumulative impacts of the Grantsdale subdivision in violation of Montana Administrative Rule 17.30.715(1) and (2). Bitterrooters failed to file their complaint within thirty days of learning of DEQ’s final agency decision. Bitterrooters’ claim that DEQ violated their right to participate is barred by the statute of limitations.”
DEQ has 60 days from the date of the judgment, which was issued May 16, to appeal the decision.