Monthly Archives: December 2016

Another victory for clean water in the Bitterroot Valley and Montana

Update to Members:
You may have read in the Bitterroot Star that the state Department of Environmental Quality has dropped its appeal to the Montana Supreme Court against Bitterrooters for Planning and our co-plaintiffs the Bitterroot River Protection Association and the Montana Environmental Center in the Grantsdale Addition lawsuit.

To recap briefly, the Grantsdale Addition subdivision at Skalkaho Road and Grantsdale Cut-Off (Bob Christ’s farm for all you old-time Bitterrooters), is a 181-unit residential subdivision. The effluent from it would have polluted the groundwater, which, through its hydrologic connection to the Bitterroot River and Skalkaho Creek, would have also increased contamination in those two water bodies. DEQ issued a groundwater discharge permit without considering this risk of contamination. BfP and our co-plaintiffs won the lawsuit in a Lewis and Clark District Court, and DEQ appealed to the state Supreme Court.
DEQ dropped it appeal when both sides agreed to a settlement, which, in our view, was another victory for water quality in our community. I’ve attached the settlement agreement to this message.

The result of the settlement is that the Lewis and Clark District Court ruling stands: the groundwater discharge permit was overturned and ruled invalid. If the developer resubmits the groundwater discharge permit to DEQ, then DEQ must conduct a more thorough analysis and take into account the cumulative impacts that effluent from 181 homes would have on the health of the Bitterroot River and Skalkaho Creek. Another important result of the ruling is that we established a connection between surface and ground water.

It’s a significant ruling and a significant victory not only for our own Bitterroot River and Skalkaho Creek, but it establishes a statewide precedent that DEQ must follow for all development projects that could impact Montana’s rivers and streams.
We don’t know at this point whether the developer plans to resubmit the groundwater discharge permit, but if so, DEQ will have to do the job we all assumed and hoped that it would do the first time: it will have to conduct an actual environmental analysis.

Bitterrooters for Planning will continue to monitor this project, because we take Article IX of the Montana Constitution seriously:
Section 1. Protection and improvement. (1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
It can’t be stated enough.

Kirsten H. Bowers
Special Assistant Attorney General
Department of Environmental Quality
Legal Unit, Metcalf Building
1520 East Sixth Avenue
P.O. Box 200901
Helena, Montana 59620-0901
Tel: (406) 444-4222

Attorney for Respondent/Defendant
Montana Department of Environmental Quality

Jack Tuholske
Tuholske Law Office, P.C.
234 East Pine St.
P.O. Box 7458
Missoula, MT 59807

Attorney for Petitioners/Plaintiffs

INFORMATION CENTER, Inc., ) Cause No. CDV-2014-505
Plaintiffs and Petitioners, ) JUDGMENT)
v. )
) Presiding Judge
Defendant and Respondent )

On ______________________________, 2016, pursuant to a Stipulated Motion to Dismiss Appeal entered by and between the above-named parties, the Montana Supreme Court dismissed DEQ’s appeal, filed on September 7, 2016, of this Court’s Memorandum and Order on Motion to Strike and Cross-Motions for Summary Judgment entered as final Judgment on July 8, 2016, in the above-captioned case.
In accordance with the Stipulated Motion to Dismiss Appeal, DEQ’s appeal is fully and finally compromised and settled upon the District Court’s entry of the parties’ proposed Order Amending Judgment amending the July 8, 2016 Judgment as follows:
1. Plaintiffs’ Motion to Strike is granted;
2. Plaintiffs’ Motion for Summary Judgment is granted;
3. DEQ’s Motion for Summary Judgment is denied;
4. The issuance of Permit number MTX000163, effective May 1, 2014 (“the Permit”), is hereby declared invalid, and is remanded to DEQ for reconsideration of impacts to nearby surface waters including the Bitterroot River and Skalkaho Creek, cumulative impacts, and substantive information derived from public input relating to potential impacts on water quality resulting from the activity authorized by the Permit in accordance with Administrative Rules of Montana 17.30.715;
5. Upon receiving a complete re-application for the Permit, DEQ will take the application under consideration and determine, based on the administrative record related to the development and reissuance of the Permit on March 24, 2014 and any relevant new or additional information, whether the proposed discharge results in significant or nonsignificant changes to water quality in accordance with Administrative Rules of Montana 17.30.715 and this Stipulated Judgment;
6. DEQ will give public notice of its findings and provide direct written notice to each of the above-named Plaintiffs. If DEQ determines the proposed discharge results in nonsignificant changes to water quality, DEQ will make a tentative decision to issue the Permit and provide the public with notice and an opportunity to comment on the tentative decision to issue the Permit. If DEQ determines the proposed discharge results in significant changes to water quality and the permittee decides to proceed with the proposed discharge by submitting an application for authorization to degrade, DEQ will make a preliminary decision to deny or authorize degradation, provide public notice of its findings and direct written notice to Plaintiffs in accordance with § 75-5-303(4), Montana Code Annotated (MCA).
Respectfully submitted this ______________ day of November, 2016.

Montana Department of Environmental Quality

Kirsten H. Bowers
Attorney for Respondent/Defendant

Bitterrooters for Planning, Inc.;
Montana Environmental Information Center, Inc.; and Bitterroot River Protective Association, Inc.

Jack R. Tuholske
Attorney for Plaintiffs/Petitioners


I hereby certify that I have filed the foregoing STIPULATION TO AMEND JUDGMENT with the Clerk of the Montana First Judicial District Court, Lewis and Clark County and that I have served true and accurate copies of the foregoing STIPULATION TO AMEND JUDGMENT upon each attorney of record in the above-referenced action, as follows:

Tuholske Law Office, P.C.
234 East Pine St.
P.O. Box 7458
Missoula, MT 59807

By: _______________________________
for Montana DEQ