BRPA is a legal advocate for the Bitterroot River and its tributaries. We are willing and ready to go to court to see that our environmental laws and public access laws are enforced.
PAST CASES
August 23, 2003 – BRPA v. Ken and Judith Siebel
This was a significant District Court decision that prevented the privatization of Montana’s public fisheries. The Department of Natural Resources and Conservation issued a water right to the Siebels that would have allowed them to divert 80% of the water from a branch of the Bitterroot River that passes through their ranch for “fish and wildlife purposes.” The plan was to create a complex of stream-like ditches that carried water to a series of wetlands and ponds before returning it to the river at the bottom of their ranch, in essence, creating a private fishery for themselves while depriving the public fishery of 80% of its water. The water rights were also found to be in violation of the Closure of the Bitterroot River Basin to surface water rights that went into effect in 1999.
January 4, 2010 – BRPA v. Bitterroot Conservation District
The Mitchell Slough case was a landmark case in defense of the Natural Streambed and Land Preservation Act of 1985 and Montana’s Stream Access Law. It squashed a well-funded attempt to privatize Montana’s waters. In this case a District Court ruled that both these laws only apply to “natural” waterways and that no stream or river was “natural” if it had been altered in any fashion by man. This would have removed almost every stream and river in Montana from protection under either law. BRPA won a reversal of that ruling in the Montana Supreme Court. Then-Governor Brian Schweitzer, was quoted on the front page of the New York Times, saying this about the case: “If you want to buy a big ranch and you want to have a river and you want privacy, donʼt buy in Montana. The rivers belong to the people of Montana.”
June, 2015 – BRPA v. DEQ
Grantsdale Subdivision wastewater discharge permit
This case was important in that it established the connection between groundwater and surface water in the DEQ permitting process.
The Grantsdale Subdivision was the largest subdivision ever approved in Ravalli County at the time, 802 residences and a business plaza. Due to the economic recession it was not developed and its wastewater discharge permit was eventually revoked because the developer had failed to install the necessary monitoring station between the subdivision’s drain field and the Bitterroot River, which was only a few thousand feet away. When the economy picked up, the developer re-applied for a permit and DEQ issued it. They resolved the revocation issue by no longer requiring the monitoring. They also failed to examine any potential negative effects upon the Bitterroot River, nor did they consider any cumulative effects.
DEQ argued that there would be no significant impact to the Bitterroot River, located just a few thousand feet from the subdivision’s combined sewage treatment facility which was simply an enlarged “glorified” septic system because they were discharging into the ground and not into the river. The basis of their argument was the contention that the record in this case does not establish a “direct hydraulic connection between ground water and surface water.”
But the Court noted that DEQ’s characterization of the record regarding evidence of a connection between the relevant ground water and surface waters failed to recognize the numerous documents discussing the well-established conclusion that there is a connection between groundwater and surface water. For example: Surface water bodies are hydraulically connected to ground water in most types of landscapes; as a result, surface-water bodies are integral parts of ground-water flow systems. Even if a surface water body is separated from the ground-water system by an unsaturated zone, seepage from the surface water may recharge ground water. Because of the interchange of water between these two components of the hydrologic system, development or contamination of one commonly affects the other.
Specific to the drainage at issue here, the Tri-State Water Quality Council in 2005 stated:
Most of the broad inter-mountain valleys of western Montana, northern Idaho, and northeastern Washington are underlain by aquifers made up of silt, sand, gravel, and cobbles that were deposited by receding glaciers and the streams that flowed from them. These aquifers tend to be shallow, and produce abundant water for domestic, municipal and irrigation water supply wells. The high permeability of many of these aquifers permits relatively rapid infiltration of recharge waters from precipitation, flooding, irrigation, and septic systems. Examples include the Missoula valley aquifer, the Bitterroot valley aquifers… Groundwater and surface water interact in complex and dynamic ways. The important concept is that surface water and groundwater are not separate, but rather consist of the same water circulating through the hydrologic system. Consequently, any impact to groundwater, such as the discharge from septic systems, will ultimately impact surface water. Managers of septic systems and other sources of groundwater contamination need to recognize that – in many of the geologic settings, such as basin-fill river valleys and lakeshores undergoing intense development pressure – groundwater contamination can have an impact on our surface waters, and vice versa. We know that groundwater in most intermountain valleys of the
Northwest generally flows toward surface water and ultimately discharges to streams, river and lakes. Thus, one would expect to find that, in some cases, septic systems are contributing significant amounts of nutrients to surface water, and causing negative impacts to area waters. This indeed turns out to be the case.
The information presented to DEQ established the connection and interaction between groundwater and surface water generally. Although there is no map of the underground flow and seepage of water through every inch of the ground between the proposed subdivision and surface water potentially affected by wastewater added to the groundwater, there is a wealth of information in the administrative record regarding the natural and known interaction. The lengthy written results of the Environmental Protection Agency’s Ground- Water/Surface- Water Interactions Workshop establish, among other things, the need to pay attention to and study the effects of groundwater on surface waters to avoid negative water quality effects.
Given the connection between ground water and surface water, it is clear that this permit would allow discharge to ground water headed to the Bitterroot River. The Bitterroot River was listed as impaired in 2014 pursuant to state and federal water quality standards and law. 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 turn, violates DEQ’s responsibility to protect the water quality of the state.’ The public comments taken by DEQ over the course of presenting and issuing the permit in 2014 well establish the value and significance of the surface waters potentially affected by discharges into the nearby groundwater. This is primarily true of the Bitterroot River, which was described by numerous citizens as a source of various benefits in their lives, including recreational, natural, and aesthetic opportunities.
In this case the cumulative effects on groundwater from numerous septic discharges are well documented in the record. (Admin. R. at 186, 191, 396-425, 524-555, 596-616. Montana Code Annotated § 75-3-303 and Montana Administrative Rule 17.30.715 require 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. See Mont. Admin. R. 17.30.715(2)(a). DEQ must explicitly address the cumulative impacts of issuance of this permit, other discharge DEQ’s permit process is integral to protection of Montana’s water quality. In this case, its issuance of Permit number MTX000163, effective May 1, 2014, was unlawful and arbitrary and unsupported by law because its conclusions were not supported by the relevant objective and scientific data in the administrative record. See Ravalli Co. Fish & Game Ass’n v. Mont. Dep’t of State Lands, 273 Mont. 371, 381, 903 P.2d 1362, 1369 (1995). While this Court cannot substitute its opinion for DEQ’s determination regarding the requested permit, it hereby requires application of Montana Code Annotation§ 75-5-303 regarding full degradation review and the public process that is set forth therein.
The District Court found in favor of the BRPA, voided the permit and ordered DEQ to perform a non-degradation analysis on the potential impacts to the Bitterroot River. DEQ appealed that decision to the Montana Supreme Court. On Novemberr 29, 2016 the Court ordered the case dismissed based on a stipulated agreement between the parties. The agency agreed to void the permit and require an adequate EA.
Grantsdale District Court Order
January 2015- BRPA, BfP and MEIC v. DEQ
The Blood Lane waste water discharge permit was issued to a realtor on property owned by some one else. The permit was issued for a “retail store” with no further disclosure of what kind of store (speculation is that it is a Walmart) and no analysis of any potential effect on the Bitterroot River only a few thousand feet from the drainfield and no analysis of potential cumulative effects. This permit is in close proximity to Grantsdale Addition Subdivision .
The District Court ruled in favor of BRPA and voided the permit.
The Bitterroot River Protective Association and Bitterrooters for Planning sued DEQ in January 2015. The groups alleged that DEQ violated water quality protection laws when it issued a wastewater discharge permit to a local real estate developer for an unidentified retail facility south of Hamilton.
The court ruled that by issuing its permit, DEQ failed to comply with the Montana Environmental Policy Act and the Water Quality Act, and failed to consider the cumulative impacts to the community resulting from the nearby Grantsdale Addition subdivision in the same area. The agency also failed to consider secondary impacts arising from construction and operation of a retail facility. Additionally, the DEQ decision to issue the permit failed to consider the impacts to the nearby Bitterroot River. The court also noted that DEQ did not identify the retail facility, which was rumored to be a Wal-Mart.
This ruling affirms citizens’ rights and constitutional responsibilities to exercise stewardship for this and future generations.
According to the court ruling, “The Water Quality Act is a reasonable implementation of Montana’s constitutional right to clean and healthful environment . . . 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.”
“We’re grateful for a court ruling that recognizes the responsibility that state has in protecting Montana’s water quality, but it’s unfortunate that Montana citizens had to litigate, and having once again to guard the guardians,” said BfP president Skip Kowalski. “The public puts its trust in state agencies like DEQ to uphold Montana’s constitution and protect our priceless water resources. But when it doesn’t, citizens are left with no choice but to litigate.”
!! Judgment voiding Blood Lane (Walmart) permit !!
ONGOING LITIGATION:
Filed May 7, 2024 – BRPA, McGuire & Roberts v. Ravalli County
Eight Mile Creek and its underlying aquifer need your help! The Ravalli County commissioners recently granted preliminary approval of a subdivision adjacent to the creek without any analysis of the potential impacts on the stream or on the underlying aquifer. One reason for this is the loophole created by DNRC’s “exempt well” provision that does not require any analysis for a single well’s impact because the appropriation is simply too small to have any significant impact.
One person drinking from a single straw may not have much impact on a 500-gallon barrel of water. But what if you add dozens of straws? Or hundreds? We all know that eventually you are going to reach the bottom of the barrel. In 2016, DNRC estimated the existence of 113,000 exempt appropriations, with an additional 3,000 added annually. How many do you think we have today?
It may seem like a small thing that Bitterroot River Protection Association has filed a lawsuit challenging the county’s preliminary approval of the Sapphire Valley Estates subdivision adjacent to Eight Mile Creek. But if we can get them to consider the impacts here as well as the cumulative impacts of other proposed subdivisions in the area, it will be a big deal. It will mean when they come to stick a bunch of straws in the ground next to your stream, they will at least have to analyze the potential impacts on your stream and the underlying aquifer. The cost of the lawsuit was estimated at $55,000. We are currently $21,000 short of our goal and have instituted a GoFundMe campaign to help meet that goal.
In fact, BRPA’s lawsuit is about much more than 33 new wells and septics being installed near Eight Mile Creek without consideration of the impacts. If the court finds in favor of BRPA and adjoining landowners, it will provide the Ravalli County Commissioners a roadmap to how a real assessment of the impacts to all the major subdivisions that they are approving hand over fist without proper assessment of impacts throughout the county. There are already similar subdivisions being planned in the immediate area.
BRPA claims that public comment identified probable impacts to agricultural water user facilities, local services, the natural environment, wildlife, wildlife habitat, and public health and safety, yet the County arbitrarily determined those impacts insignificant and/or mitigatable without disclosing legitimate rationales for its determinations based on the evidence before it. Despite clear legal duties described in the Montana Subdivision and Platting Act, Ravalli County failed to assure the compilation of relevant information, failed to adequately identify or assess the impacts, and arbitrarily dismissed public concern and evidence of potentially significant impacts based on conclusory findings. BRPA seeks and is entitled to a declaration that the County’s reliance on separate agency review and approvals to meet the requirements of the law and approve the Sapphire Estates Subdivision, without itself conducting those analyses, constitutes legal error and was arbitrary and capricious.
BRPA claims that the subdivision application itself did not contain enough relevant information to even be “sufficient” for consideration under the Montana Subdivision and Platting Act. BRPA also claims that the Ravalli County Subdivision regulations themselves are insufficient in that they do not require the County to review major subdivision applications for potential cumulative impacts: e.g., a proposed subdivision’s impacts when considered in conjunction with other existing and pending subdivision applications.
It is time for the County Commissioners to consider the impacts of the subdivisions they approve based on the information they have before them, as the law requires, and not pass that obligation off to state agencies for future determination. It is time that they consider the impacts of their decisions based not only on the immediate impacts within the property boundaries being divided, but upon surrounding properties and the surrounding environment. It is time that they consider the long-term cumulative impacts of what they are doing on the whole valley.
Court Case: