Subdivision Water Pollution Permit Declared Unlawful After DEQ Failed to Consider Cumulative Impacts
On November 16, the Montana Eighteenth Judicial District Court in Gallatin County released a ruling in favor of Upper Missouri Waterkeeper and the Montana Environmental Information Center in a case challenging the Department of Environmental Quality’s (DEQ) renewal of a wastewater pollution permit for the Lazy J South subdivision in Big Sky. The Court found that DEQ failed to take a “hard look” at the cumulative impacts of wastewater pollution on water quality in the Gallatin River.
“We are encouraged by the Court’s ruling today, which vindicates the public’s right to a thorough assessment of pollution impacts to our local waterways before decision-making,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “The Lazy J South pollution permit is just a single case representative of the larger issue in Montana, where agencies continue to rubber stamp new development approvals without looking at the combined impacts on our finite and valuable water resources.”
On July 16, 2021, Upper Missouri Waterkeeper and the Montana Environmental Information Center filed a complaint against DEQ challenging the issuance of a groundwater pollution permit issued to Lazy J South, a residential and commercial development located less than half a mile from the mainstem Gallatin River in Big Sky’s Canyon area. The complaint argued that DEQ did not adequately consider the cumulative impacts of wastewater from the development on local groundwater or surface water in the Gallatin and failed to undertake the required nondegradation analysis before granting the permit, violating the Montana Water Quality Act. Among the relevant facts was evidence that local groundwater was already contaminated by sewage discharges and that the Gallatin River itself has experienced consecutive years of nuisance algal blooms, pollution events that degrade water quality conditions and harm aquatic life and recreational uses of the river.
“For too long, DEQ has failed to evaluate the totality of pollution entering rivers and streams, and instead intentionally siloed off its analysis and avoided evaluating all pollution sources and the ‘big picture’ health of our waterways,” stated Derf Johnson, Deputy Director of the Montana Environmental Information Center. “Thankfully, the Judge’s ruling recognizes that the law requires a cumulative analysis by DEQ, so that Montana’s rivers and streams won’t be degraded, fouled, and suffer death by one-thousand cuts.”
The Court held oral arguments for the parties in June 2022. In its ruling issued November 15, 2022, the Court ruled in favor of Upper Missouri Waterkeeper and the Montana Environmental Information Center in their claim, concluding that DEQ failed to take a hard look at potential cumulative impacts in violation of the Montana Water Quality Act. In addition to declaring the permit unlawful, the Court ordered DEQ to perform a new assessment of the permit that adheres to the law and properly examines the cumulative impacts of wastewater discharge on the Gallatin River system.
The Court order has enormous importance for the upper Gallatin River, the community of Big Sky, and for communities across the state challenged by unprecedented growth nearby sensitive waterways and trophy trout streams. At its most basic level, the Court’s order reminds DEQ that it cannot, in the face of science showing local water quality problems, ignore how individual projects in a river system can – together – negatively impact local river health.
In summer 2022, the Montana DEQ issued a preliminary determination that the mainstem Gallatin River adjacent to Big Sky is “impaired” for algal blooms related to cumulative nutrient pollution. An impairment determination for the middle segment Gallatin would trigger a mandatory pollution assessment process and river clean up plan. More than 2,000 public comments were submitted in favor of the state agency finalizing its impairment determination. As of November 15, 2022, the DEQ has yet to issue a final determination approving its preliminary impairment designation for the middle segment Gallatin River.