Judge denies DEQ’s request to dismiss Flathead sewer case
Laura Lundquist
(Missoula Current) A Flathead County judge disagreed with the state’s arguments that a lawsuit challenging a wastewater permit should be dismissed, so a citizens’ case against the Montana Department of Environmental Quality will go forward.
On Nov. 10, Flathead County District Court Judge Danni Coffman denied the state’s request to completely dismiss a case that Citizens for a Better Flathead and the Confederated Salish and Kootenai Tribes filed against the DEQ for issuing a wastewater discharge permit to Lakeside County Water and Sewer District. But Coffman did find the state’s arguments convincing enough to dismiss two of the plaintiffs’ four requests.
DEQ attorneys asked the judge to throw the case out, saying Citizens for a Better Flathead had failed to include Flathead County and Lakeside County Water and Sewer District as defendants. The law requires a case to include all individuals or parties that would be culpable in the final remedy if plaintiffs won. DEQ said the county and the sewer district were involved because they’d invested time and money based upon the existence of the permit.
But Coffin ruled that the case is dependent only on the validity of the permit issued by DEQ and DEQ’s responsibility to enforce Montana’s water quality standards. Therefore, her ruling would only affect the DEQ. That makes the county and the sewer district dispensable, so Coffin denied DEQ’s quest to dismiss the entire case.
However, the judge agreed with the DEQ on two of the plaintiffs’ four requested actions, which she dismissed: that DEQ should have completed a nondegradation analysis and the request for declaratory relief.
Declaratory relief results when a judge makes a determination of the rights and obligations of the parties involved in a dispute based upon applicable laws. It’s often used to ask the court for a legal opinion on a matter before any actual harm occurs. But in this case, Coffin decided the law doesn’t allow her to make such a determination.
“When one boils the Plaintiffs’ requested relief down to its substance, a finding in their
favor would require the Court to declare DEQ acted illegally because it should have come to a different conclusion given the evidence in the record. This falls beyond the scope of determining the Plaintiffs’ rights under a statute,” Coffin wrote.
Lower Ashley Creek is already impaired because of nutrients from human waste. A DEQ Flathead-Stillwater water quality assessment reported that more than 3,350 septic systems contribute 15% of the nitrogen and 20% of the phosphorus loads in Lower Ashley Creek.
However, Coffin found that a degradation review is required only “when DEQ determines the proposed activity is significant.” In this case, the proposed activity would be the sewer district’s release of 200,000 gallons of wastewater a day into the aquifer, which is hydrologically connected to Ashley Creek and Flathead Lake a mile away.
Phase 2 of the facilities project would bump the discharge rate up to 900,000 gallons a day. DEQ decided the wastewater discharge wouldn’t add a significant amount of nutrients to Ashley Creek, claiming the ground would sufficiently filter the water before it rose to the surface. Therefore, since DEQ said it wasn't significant, DEQ didn’t need to do a nondegradation analysis, even though ground filtering is not working well for the septic waste.
“Without a finding that the activity is significant, DEQ has no obligation to conduct a degradation analysis. The Court can only remand the process to DEQ if, and only if, their actions were arbitrary and capricious under Count One. Therefore, Count Two relies on not just the outcome of Count One, but the DEQ’s revised findings upon remand, which are wholly hypothetical,” Coffin wrote.
Count One, which remains alive in the case, says DEQ failed to look at cumulative impacts of nutrient discharge as required by the Montana Water Quality Act. The cumulative impacts would include all the sources of nutrients, including septic and the sewer discharge. The other remaining charge in the lawsuit is that DEQ violated the Montana Environmental Quality Act when it based its permit approval on a less vigorous environmental assessment.
On Friday, Citizens for a Better Flathead issued a statement expressing disappointment about the dismissal of the nondegradation analysis but adding they were pleased the case was moving forward.
“The core issue remaining in this lawsuit is simple: Did the DEQ follow its legal obligations under the Montana Water Quality Act and MEPA? We believe the answer is no. The Court’s decision to leave our claims regarding the failure to take a hard look at cumulative nutrient impacts and potential impacts under MEPA confirms that the fundamental controversies over the DEQ’s permitting process remain valid. We are committed to ensuring the state agency fulfills its duty to protect the water quality of the Flathead basin,” said Mayre Flowers of Citizens For A Better Flathead in a statement.
Coffin recently denied a Citizens for a Better Flathead request for an injunction to suspend the Flathead County and Lakeside County Water and Sewer District permit while the lawsuit proceeds.
In a separate but related case, Flathead County Judge Paul Sullivan on Nov. 3 rejected a Citizens for a Better Flathead mandamus request to require Lakeside County Water and Sewer District to release public documents and void two decisions made by its board. The first decision was agreeing to service a luxury resort, “Territory 1889,” also known as Flathead Lake Club, backed by Discovery Land Company.
The second decision was to award a construction bid for Phase I of the wastewater treatment expansion project. The documents related to the sewer district’s capital improvements. Sullivan didn’t respond to the Citizens for a Better Flathead request mandamus for months following a June hearing, prompting the group to appeal to the Montana Supreme Court. Sullivan said his order was accidentally delayed.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.