By Michael Howell
On Tuesday, June 28, District Court Judge Kathy Seeley in Helena voided a wastewater discharge permit for the Grantsdale Addition, a subdivision located south of Hamilton along Skalkaho Highway.
The Montana Department of Environmental Quality (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 and it was challenged by three non-profit organizations, the Montana Environmental Information Center, Bitterrooters for Planning and the Bitterroot River Protection Association. The groups challenged the permit 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 in proximity to both Skalkaho Creek and the Bitterroot River.
The first thing Judge Seeley did was strike the use of some information submitted by DEQ about a groundwater investigation program by the Montana Bureau of Mines and Geology, a newspaper article and a 52-page document generated by DEQ regarding non-degradation analysis. The plaintiffs argued that the decision as to whether the issuance of the permit was arbitrary, capricious, unlawful or unsupported by substantial law should be made based upon the evidence that was considered by the agency at the time of issuing the permit. DEQ argued that the motion to strike was untimely and that Montana law does not preclude the Court’s consideration of the additional information. Seeley notes that in contested cases the Montana Supreme Court recently upheld the requirement that the evidence, related to agency decisions, should be restricted to the information that was used by the agency in making its decisions and she saw no reason to deviate from that in this uncontested case either.
In defense of its decision, DEQ argued that because there is only groundwater at issue, the Clean Water Act is inapplicable and that it fully complied with the Montana Water Quality Act.
Seeley begins her review of the case by pointing out that the state must meet both federal and state laws concerning water quality and points to the additional mandate in the Montana constitution “to maintain and improve a clean and healthy environment for present and future generations.”
Seeley notes that under the heading “Site Hydrogeology” the permit fact sheet states that the groundwater flow direction on the east side of the Bitterroot Valley in the vicinity of the facility is generally northwest toward the Bitterroot River beneath the low terrace along Skalkaho Creek. The permit application also indicates an estimated groundwater flow of 0.006 ft/ft, and hydraulic conductivity (k) of 989 ft/day and a flow direction toward the Bitterroot River which is located about 4,000 feet away.
In her discussion, Seeley notes that the statutory goal of Montana is to maintain the existing uses of state waters and the level of water quality necessary to protect those uses, i.e. to avoid degradation.
Although the law does allow DEQ to determine initially if a degradation review is necessary, if it determines that there is a lack of significant changes in water quality caused by the activity allowed by the permit, it need not implement the public process regarding degradation and need not show the need for the degradation by a preponderance of evidence.
But, Seeley notes specifically there are criteria to be used to make that determination, including “weighing the social and economic importance to the public of allowing the proposed project against the cost to society associated with a loss of water quality.” The criteria must also provide 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 7.5 milligrams per liter.
Seeley notes further that the department may determine that the change in water quality resulting from an activity which meets this criteria could still be considered degradation based upon cumulative impacts or synergistic effects, or on substantive information derived from public input.
DEQ contended that the record in this case does not establish a “direct hydraulic connection between groundwater and surface water.”
Seeley found, however, that “DEQ’s characterization of the record regarding evidence of a connection between the relevant groundwater and surface waters fails to recognize the numerous documents discussing the well-established conclusion that there is a connection between groundwater and surface water” and gives a few examples.
“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,” wrote Seeley.
She also found that cumulative effects on groundwater from numerous septic discharges are 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.”
Seeley declared the permit invalid and ordered DEQ to do a full degradation review following the prescribed process.
This is the second wastewater discharge permit in the Bitterroot Valley to be recently invalidated and returned to DEQ for a proper degradation review of potential effects on the Bitterroot River and for an analysis of cumulative effects.