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Runoff

Montana Department of Environmental Quality permits that govern large municipalities' storm water runoff were unsuccessfully challenged in a recent lawsuit.

A conservation group's attempt to push the state to set tougher standards for reducing storm water pollution has failed.

On April 9 the Montana Supreme Court upheld the Montana Department of Environmental Quality's establishment of new storm water discharge permits in 2017 for six of the state's largest cities, along with six other entities.

“The plaintiffs sought an overly prescriptive approach that would have resulted in excessive and costly monitoring at the expense of infrastructure improvements and other initiatives with a more direct impact on water quality,” said Tim Davis, DEQ's Water Quality Division administrator.

In an abbreviation-filled ruling five members of the seven-justice high court found the state agency was not arbitrary or capricious, nor did it act illegally, affirming Gallatin District Court Judge Rienne McElyea’s earlier finding.

Justice Ingrid Gustafson wrote the majority opinion.

The ruling stemmed from a court challenge by Bozeman-based Upper Missouri Waterkeeper. The group contended in its 2016 lawsuit that the new permit — the third of its kind — was deficient because the public was not allowed to participate in setting new standards. The city of Billings intervened in the lawsuit on the side of DEQ.

"Montana citizens and local businesses dependent on our outdoors economy want to know the state and local jurisdictions are reducing stormwater pollution," said Guy Alsentzer, executive director for Upper Missouri Waterkeeper. "The court has denied these tougher municipal stormwater permits, and that’s disappointing."

Background

Recognizing that rain and snowmelt runoff was a source of water pollution, in 1987 Congress amended the Clean Water Act to address storm water runoff. The new permit was directed at what the Environmental Protection Agency calls Municipal Separate Storm Sewer Systems, or MS4s.

EPA defined MS4s as “not always just a system of underground pipes — it can include … roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains.”

The law initially targeted larger cities. It wasn’t until 1999 that EPA directed its attention to smaller communities. Small MS4s serve populations of fewer than 100,000.

In Montana

To comply, the Montana Board of Environmental Review adopted rules for small MS4s in 2003.

In Montana that included the cities of Billings, Missoula, Great Falls, Bozeman, Butte, Helena and Kalispell, as well as portions of Yellowstone, Missoula, and Cascade counties, Malmstrom Air Force Base, Montana State University, and the University of Montana.

By 2005 DEQ had issued its first five-year MS4 with the second in 2010. The third iteration was set to go into effect in 2015 but the deadline was extended to 2017 as the MS4 working group requested more time. Public hearings were scheduled before the new permits were authorized.

"Over the course of two years, a working group including environmental groups and representatives of local, state and federal governments developed the requirements to protect water quality, while giving cities and counties flexibility to use their limited resources effectively," the DEQ's Davis said. "The court recognized that this flexibility is provided for in the Clean Water Act."

Unsatisfied with the process, Upper Missouri Waterkeeper sued the DEQ just before the permits were to go into effect. Last June, Judge McElyea denied Waterkeeper's motion, granted DEQ's and the city of Billings' cross-motions, and affirmed DEQ's issuance of the permits.

"Under the court’s ruling, General MS4 Permit jurisdictions aren’t required to go above and beyond traditional pollution control practices; they are only required to make modest improvements over time," Alsentzer wrote. 

Waterkeeper appealed to the Montana Supreme Court.

"Waterkeeper filed its petition for judicial review because Montana citizens, local businesses, and our rivers deserve stormwater permits that demand near-term, measurable pollution control results that would provide meaningful progress today and critical backstops in the future in protecting fishable, swimmable, drinkable water," Alsentzer said.

High court

In its 20-page review the high court noted, “We defer to an agency's interpretation of its rule unless it is plainly inconsistent with the spirit of the rule; however, neither this Court nor the district court must defer to an incorrect agency decision.”

As a result, the justices limited their review to whether DEQ’s decision was “arbitrary, capricious, unlawful, or not supported by substantial evidence.”

Waterkeeper had argued that the cities were allowed to choose best management practices and the maximum amount of pollutants to discharge after the permit was already awarded, thereby excluding public participation requirements in establishing those criteria.

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The Supreme Court disagreed, saying the public had plenty of opportunities to comment prior to the adoption of the permit, and that the permit’s language requires further outreach by the communities in the future.

No change

The justices also called Waterkeeper’s argument “unconvincing” that when a municipality chose a best management practice, that was a significant change to the permit.

“The BMPs listed in the General Permit were developed with two years of input from numerous stakeholders, including the general public,” the court wrote.

The towns were essentially “choosing from an already-approved menu,” Justice Gustafson wrote, comparing the experience to a wedding reception guest choosing chicken or fish from the dinner options.

“The guest is still attending a wedding reception regardless of his or her dinner choice.”

Flexibility

What’s more, the high court said the Environmental Protection Agency — which oversees the permitting process through powers granted by the Clean Water Act — deliberately made the permit program flexible.

“It is not unlawful, arbitrary, or capricious for DEQ to use this intentional flexibility when issuing (Montana Pollution Discharge Elimination System) permits.”

Waterkeeper had also argued that DEQ’s requirement that the cities had only to capture the first half-inch of rainfall from a 24-hour storm, preceded by 48 hours of no measurable rain, was arbitrary and capricious.

“Because we defer to an agency's determination in areas of its expertise, it was not arbitrary and capricious for DEQ to use its chosen post-construction storm water runoff standard in the General Permit,” the Supreme Court wrote.

Waterkeeper was also shot down in its contention that “DEQ abused its discretion by not including enforceable and measurable pollutant reduction requirements tied to applicable (waste load allocations).”

The high court disagreed, writing in part, “EPA first approved the (Total Maximum Daily Loads) in a separate process and then reviewed and concurred in the issuance of the General Permit which contained those TMDLs.”

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