2017 ANNUAL REPORT
On the legal front, it was a disappointment to have the Montana Supreme Court reverse a lower court decision that was in our favor concerning the applicability of the Montana Environmental Policy Act (MEPA) to the Montana Department of Environmental Quality’s (DEQ) wastewater discharge permitting process.
In this case the District Court had ruled that, under MEPA, DEQ would also be required to do an environmental analysis of the impacts of the retail store facility on the environment and not just installation and operation of the septic treatment system. The landowners joined DEQ on that appeal and added an objection of their own, appealing the requirement for the owner/operators’ name on the application.
DEQ argued that the building and operation of the retail store was not in its jurisdiction. They argued that it would be unfair and impracticable to require them to enforce standards, laws, or regulations that it had no authority to enforce. The Supreme Court agreed with the agency and reversed the district court order. The Supreme Court noted that the authority to regulate the construction and operation of the retail store was, in state law, specifically granted to the local government and not the state.
The Court wrote “In accordance with its express language, MEPA still requires state agencies to adequately consider, ‘to the fullest extent possible’ within the scope of their independent authority, all direct and secondary environmental impacts that will likely result from the specific activity conducted or permitted by the agency. The problem for Bitterrooters is that the broader environmental impacts of the larger construction and operation of the retail store are not subject to MEPA review because the Legislature has not placed general land use control in the hands of a state agency. As recognized in Montana Wilderness over 40 years ago, the Legislature has, with limited exceptions, placed general land use control beyond the reach of MEPA in the hands of local governments.”
“Regardless of MEPA’s manifest beneficial purpose and Bitterrooters’ otherwise compelling public policy arguments, we simply cannot properly stretch MEPA beyond the limits of its language and stated purpose to fill an environmental review gap created by the Legislature and remaining within its domain to remedy if so inclined.”
So, for us, the problem remains. Without even a Growth Policy in our county, if DEQ isn’t going to consider the impacts of a major retail store installation when permitting the wastewater treatment system, then no one will be doing it.
On the bright side, the Montana Supreme Court upheld the lower court ruling that Walmart’s name will have to be entered on the next permit request, if there is one. On the issue of the applicants identify the High Court sided with the District Court and affirmed the requirement that the actual owner and operator of the point source being permitted must sign on as the applicant. In this case, the court notes, the applicant Lee Foss (a local realtor) was expressly identified in the court proceedings as not ever intending to be the true owner/operator, but only a pass-through intermediary.
And very much on the bright side, is the fact that the ruling over MEPA does not affect the District Court’s order voiding the original permit due to violations of the Montana Water Quality Act, specifically failing to look at the potential impacts to the Bitterroot River and cumulative impacts. If Walmart re-applies the requirements of the Montana Water Quality Act would still apply and they would have to examine the potential impacts on the river and on the groundwater, as well as consider cumulative impacts.
On the Water Quality front, we made great strides in implementing the Bitterroot River Health Check program, a community based-water quality monitoring program supported by of a collective of individual community members, local businesses, and non-profit organizations, as well as the Bitterroot College.
We participated, along with our partners Trout Unlimited and Bitterrooters for Plannning, in collaborations with DEQ that resulted in the extension of the department’s ongoing long-term monitoring of the Clark Fork Basin to include the Bitterroot River. A Bitterroot River Sampling and Analysis Plan was developed in conjunction with the Clark Fork River SAP. BRPA became the contracting agent with the agency providing a team of volunteer “Citizen Science” monitors to collect data and samples from the four sites on the Bitterroot River.
The Bitterroot River Health Check volunteers got their feet wet in June and by the end of the season had put in collectively 123 volunteer hours. DEQ provided a quick introduction to the practice of gathering data on the basic parameters with a YSI and protocols for grabbing lab samples. BRPA produced a Field Manual for the 2017 monitoring season and a ten volunteers received training and experience. The sampling occurred twice a month for three months and samples were delivered to the lab in Missoula. This was the first year of a five-year (plus) program.
We also signed a Memorandum of Understanding with the Bitterroot College to house the Bitterroot River Health Check Program at the college in exchange for use of BRHC’s equipment for educational purposes.
We successfully applied for a Rapp Family Foundation Grant enabling the purchase of a laboratory freezer/refrigerator, two YSI meters, a FlowTracker2 flow meter and various sensors.
Also this year, Bitterroot River Director/WATERKEEPER Michael Howell was nominated and elected to serve on the Executive Committee of the Clark Fork and Kootenai Basins Council.
The Montana legislature directed that Montana’s State Water Plan be updated in 2014, along with the development of four regional basin water plans, including the Clark Fork and Kootenai River Basins Water Plan which includes the Bitterroot River as a sub-basin. The State Water Plan and the Clark Fork and Kootenai River Basins Water Plan recommended the use of basin advisory councils for implementation of the state water plan and management of the state’s water resources. With support from the Montana Watershed Coordination Council, Clark Fork and Kootenai basins stakeholders met three times over the course of 18 months and created the Clark Fork and Kootenai River Basins Council (the Council).
The Purpose of the Clark Fork and Kootenai River Basins Council is to develop vision, coordinate common strategy, and support the network of water user interests at the basin scale. The Clark Fork and Kootenai River Basins Council will identify and address common basin-wide concerns, challenges, and solutions that are best addressed at the basin-level. The Council will focus on activities that provide added value to community based activities.
Participants represented a diverse group of over fifty stakeholders including conservation districts, irrigation districts, water quality districts, watershed groups, water-related governmental agencies, landowners, the Clark Fork Task Force, the Upper Clark Fork River Basin Steering Committee, and others. Howell is one of the twelve Executive Committee members chosen from across the basins.
This position gives the Bitterroot River watershed a voice at the table in the greater Clark Fork and Kootenai Basins Council deliberations as we all work together toward implementing the State’s Water Plan.
Howell serves as head of the Data Committee which took the Bitterroot River sub-basin as a model and, working with the U of M Watershed Health Clinic, had graduate student Christopher Morris, compile a comprehensive report on the data available from all the various agencies concerning water quality and quantity in the Bitterroot River basin. The report identified gaps in the data and made recommendations for future data gathering projects in the water shed. It will be used by BRPA and the Bitterroot River Health Check program to guide the expansion of our monitoring program this summer beyond the four long-term sites on the river’s main stem and into the tributaries.
Throughout the year we patrolled the river and responded to calls and inquiries about activities on the river and its tributaries. We also monitored permit applications that impact the watershed.