Kearns and Sons RS Aesthetics

High Court to hear arguments in ‘big box’ store permitting case

By Michael Howell

Oral arguments before the Montana Supreme Court in the case challenging the waste water discharge permit issued for a large retail store development in the Bitterroot have been set for March 29 at 9:30 a.m. in Helena.
The case involves a wastewater discharge permit issued by the Department of Environmental Quality (DEQ) to local realtor Lee Foss for the installation of a wastewater treatment system for an unidentified large retail store, suspected to be a Walmart. The permit was issued in November of 2014 and challenged in court in January of 2015 by two local non-profit groups, Bitterroot River Protection Association and Bitterrooters for a Planning.
The wastewater treatment system would serve an unidentified 155,159 square foot retail store located on 18 acres on the northeast corner of Highway 93 and Blood Lane south of Hamilton. In May 2016, District Court Judge Mike Menahan ruled in favor of the citizen groups and voided the permit. Menahan found that DEQ had violated the Montana Water Quality Act by failing to consider the potential effects of the project on the Bitterroot River and failing to consider any cumulative effects, despite the fact that it had already recently approved a discharge permit for a large subdivision in the same area, called the Grantsdale Subdivision. Menahan also found that DEQ had violated the Montana Environmental Protection Act (MEPA) by not naming the true developer of the facility and by not examining the potential effects of the entire project. The permit was issued to a realtor and DEQ had limited its analysis simply to the installation of the treatment system and not examined any of the potential impacts of the retail store development itself.
Once the case was filed two landowners involved in the project, Stephen Wanderer and Georgia Filcher, joined as intervenors. Both DEQ and the intervenors appealed Menahahn’s ruling. Neither one of the appellants is challenging the first part of Menahan’s ruling that found the agency had violated the Montana Water Quality Act by not considering the potential effects on the Bitterroot River and not considering any cumulative impacts. What both DEQ and the intervening landowners did appeal was Menahan’s decision that the Montana Environmental Policy Act (MEPA) was also violated by not requiring the true identity of the developer to be disclosed and by not considering the “secondary impacts” of the entire project, i.e. the retail store, when considering the potential impacts of the permit.
Officials at DEQ admit that the permit applicant, Lee Foss, is probably not the developer but they also claim that there is no requirement for any identification in the process other than the person making the application. The agency also claims that while the requirements of the Water Quality Act do apply to the permit, MEPA, on the other hand, was being inappropriately applied. They claim that the agency has no obligation to analyze the impacts of the construction and operation of a facility that they have no control over. Their authority, they argue, extends only over the construction and operation of the treatment system itself, and they should not be required to analyze the impacts of anything beyond that.

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