Waterkeeper Defeats DEQ’s Motion to Dismiss in Big Sky Water Pollution Challenge

Lawsuit Will Proceed to the Merits 

Yesterday, the Montana Eighteenth Judicial District Court in Gallatin County denied the Department of Environmental Quality’s (DEQ) motion to dismiss the Upper Missouri Waterkeeper v. Montana Department of Environmental Quality lawsuit challenging the authorization of new wastewater discharges from a new major subdivision in Big Sky. The case will now proceed to the merits phase.

 “Even after the recent court ruling in Lazy J South, DEQ continues to turn a blind eye to law and science when approving water pollution from new subdivisions,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “Enough is enough. It’s undisputed that our rivers are suffering from nutrient-driven problems. DEQ needs to stop taking shortcuts and do the job the law requires. This means understanding the consequences of cumulative, death-by-a-thousand cuts, water pollution from new and existing development on our blue ribbon trout streams before rubber-stamping new subdivisions.”

The project at issue, the Quarry, is a new, multi-phase residential and commercial development located only 1200 feet from the Gallatin River in Big Sky. The project is riddled with many of the same water pollution permit flaws as Lazy J South, which the court ruled unlawful in November 2022, based on the agency’s failure to do a proper analysis of cumulative impacts of the development’s wastewater on the Gallatin River. For a detailed fact sheet on the Quarry project, click here

DEQ’s authorization of new wastewater discharges from the Quarry Project flies in the face of both court rulings and the EPA’s recent impairment determination for the mainstem Gallatin from algal blooms related to nutrient pollution. Once again the agency has violated the Montana Environmental Policy Act (MEPA) and the Montana Water Quality Act (MWQA) by failing to perform the legally-required analysis of cumulative impacts and degradation potential, and also completely disregarded the reality that an impaired waterway is already past a tipping point and cannot support any additional pollution discharges.

This lawsuit also challenges the guidance manual DEQ has been relying on when approving pollution permits for irresponsible subdivision development in sensitive areas. This manual sanctions unscientific, arbitrary setbacks and wastewater standards for development separate from what the law requires. The guidance manual exempts many types of new subdivision development from meaningful environmental review, essentially incentivizing development despite direct links to water quality degradation in nearby rivers and streams. DEQ cannot continue to rely on a guidance manual that has never been peer-reviewed, never gone out for public comment, and contradicts state statutes that require the protection and maintenance of existing uses of water.  

A positive outcome from this lawsuit will have statewide value, affecting how and where we develop new subdivisions, as well as influencing science-based rules and smart growth solutions that will better protect fishable, swimmable, drinkable water. As Montana continues to face development pressure, it’s critical that we’re using strong science to guide responsible growth that won’t sacrifice local water quality.