Waterkeeper Files Motion for Summary Judgment in Lawsuit Challenging Big Sky Subdivision

Last week, Upper Missouri Waterkeeper filed a Motion for Summary Judgment in our lawsuit challenging DEQ’s authorization of new wastewater discharges from Phase I of the Quarry Subdivision. The Quarry Subdivision is a new, multi-phase major residential and commercial development located along Highway 191 in Big Sky only 1200 feet from the Gallatin River. DEQ’s and the developer’s own data shows the shallow groundwater receiving new wastewater pollution will transport pollutants to the Gallatin River in approximately three weeks. And, as many remember well, in 2022 the DEQ formally declared the Gallatin River impaired due to severe, recurrent algal blooms which are degrading its aquatic life and recreational uses.

For more background information on the Quarry Subdivision, click here

The motion requests the Court determine and declare DEQ’s decision-making authorizing wastewater discharges was arbitrary and capricious, unlawful, and contrary to the Montana Water Quality Act (WQA), Montana Administrative Procedures Act (MAPA), and Montana Environmental Policy Act (MEPA), and void the Phase I authorization.

Waterkeeper’s main arguments in the motion are as follows:

  1. DEQ violated ARM 17.30.715(2) by failing to take a hard look at cumulative impacts or synergistic effects of nutrient pollution. This exact argument was brought forth in Upper Missouri Waterkeeper v. DEQ, when we successfully challenged DEQ on its approval of the wastewater pollution permit for the Lazy J South subdivision without evaluating cumulative impacts. There, the 18th District Court in Gallatin County agreed and ruled that DEQ’s approval of the permit was unlawful. Despite this, DEQ committed the same flawed decision-making for the Quarry subdivision and its new wastewater discharges, once again violating the law.
  2. DEQ violated nondegradation policy MCA 75-5-303/301. DEQ is required to conduct a rigorous nondegradation review before permitting applicants to discharge pollution that has the potential to cause or contribute to degradation, yet the agency failed to do so and determined the new nutrient pollution discharges to be nonsignificant. Not only is this contrary to state law, but it’s also particularly troubling given the agency’s own determination that the Gallatin River is impaired by algal blooms and is failing to meet aquatic life and recreation beneficial uses. The law requires our pollution control agency to evaluate – and enforce – caps to pollution to waterways in order to protect assimilative capacity.
  3. DEQ violated MEPA by failing to apply its own criteria or take a ‘hard look’. The Environmental Assessment for the Quarry Phase I and Response to Comments do not discuss nutrient pollution concerns in Big Sky, the middle segment Gallatin’s impairment designation, or any potential impacts the Quarry may have on nearby surface waters. 
  4. DEQ violated MAPA by applying its guidance as a legislative rule without complying with MAPA procedures. For years DEQ has relied on a non-binding guidance document to determine what groundwater discharges are nonsignificant as a matter of law. This pattern and practice came to a head in the Quarry Phase I, where DEQ relied on its guidance document to sanction tens of thousands of gallons of new pollution discharges daily, without performing the environmental reviews required by law.

Waterkeeper requests the Court determine DEQ’s approval of the Quarry’s groundwater pollution discharges unlawful, arbitrary and capricious, and in violation of state law, and find that DEQ failed to take a hard look at water resource impacts. The motion also suggests the Court determine DEQ’s reliance on Nondegradation Guidance unlawful. Finally, Waterkeeper requests the Court void DEQ’s approval of Phase I of the Quarry for failing to consider impacts to surface waters, cumulative impacts, and degradation of the Gallatin River.

With unrelenting development pressure in Big Sky, and particularly in the Canyon Area, and amidst an impairment determination for the Gallatin River and a 6-year process for drafting a pollution reduction plan, it is critical that our state pollution control agency stop issuing permits for more pollution that could further degrade water quality. 

Waterkeeper expects briefing in the Quarry Phase I subdivision case to conclude by the end of August 2024 and for the court to set a hearing on the merits soon thereafter. Stay tuned!