Bitterrooters for Planning, Inc. v. Montana Department of Environmental Quality
2017 MT 222
| Mont. | 2017Background
- DEQ issued a Montana groundwater discharge (MGWPCS) permit allowing treated wastewater from an onsite Level‑2 treatment system for a planned 156,529 sq. ft. retail store near Hamilton, MT; the application named a real‑estate broker (Lee Foss) as applicant though he did not intend to be the eventual owner/operator.
- The permit and EA focused on groundwater/water‑quality effects of the treatment system and discharge; DEQ concluded no significant adverse impacts and issued the permit after public comment.
- Public commenters urged DEQ to analyze broader, non‑water quality impacts of the retail development (traffic, aesthetics, air/noise, weeds, economic effects); DEQ declined, treating many concerns as beyond its scope.
- Bitterrooters sued, claiming DEQ violated MEPA and MWQA by failing to consider cumulative water‑quality impacts and by not addressing secondary, non‑water quality impacts of the retail project in its EA.
- The district court granted summary judgment for Bitterrooters on several MEPA and MWQA grounds, including that DEQ should have treated the store’s construction/operation (beyond the treatment system) as secondary impacts and that DEQ must identify the actual owner/operator before issuing the permit.
- The Montana Supreme Court reversed in part and affirmed in part: it rejected the district court’s expansive ‘‘but‑for’’ causation approach (requiring DEQ to analyze unrelated development impacts) but affirmed that MGWPCS rules and DEQ Form 1 require identification of the actual owner/operator on the permit application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MEPA required DEQ to consider non‑water quality impacts of the full retail development as secondary impacts of issuing the wastewater discharge permit | Bitterrooters: The permit enabled the project, so DEQ must analyze all secondary impacts (traffic, aesthetics, economic effects) | DEQ: Its authority is limited to water quality/groundwater impacts of the permitted discharge and related infrastructure | Held: No. MEPA requires a "reasonably close causal relationship"; an agency must analyze impacts it can lawfully prevent or mitigate. DEQ need not evaluate broader development impacts beyond its regulatory authority. |
| Whether DEQ must identify the actual owner/operator on an MGWPCS permit application | Bitterrooters: Identity of owner/operator is relevant to environmental review and public participation | DEQ/Landowners: Identification at transfer suffices; MEPA does not mandate disclosure at application | Held: Yes. Under MGWPCS rules and DEQ Form 1, the application must identify the actual owner/operator; DEQ erred in accepting Foss when he was not the real owner/operator. |
Key Cases Cited
- Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) (NEPA requires a reasonably close causal relationship; agency need not consider effects it lacks authority to prevent)
- Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983) (NEPA requires a reasonably close causal relationship between action and effect)
- Montana Wilderness Ass'n v. Montana Bd. of Health & Envtl. Sciences, 171 Mont. 477 (1976) (state agency MEPA review is limited to agency's regulatory authority; cannot be compelled to review all subdivision impacts beyond statutory jurisdiction)
- Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir. 2005) (Ninth Circuit held Corps’ jurisdiction had sufficient causal nexus to require consideration of certain indirect impacts on unique facts; Court here finds SOS distinguishable)
- Chelsea Neighborhood Ass'n v. U.S. Postal Service, 516 F.2d 378 (2d Cir. 1975) (example of broader indirect‑impact analysis under NEPA relied on by district court but distinguished in light of Public Citizen)