Water for Flathead v. DEQ
412 Mont. 258
Mont.2023Background
- Artesian obtained a DNRC beneficial water-use right for up to 450 gpm for a proposed Creston bottling facility; DNRC’s EA assessed impacts of full use and found no significant impacts.
- Artesian applied to DEQ for a Montana Pollutant Discharge Elimination System (MPDES) permit limited to a 1.8 gpm startup discharge; DEQ prepared an EA focused on that proposed discharge.
- EPA and USFWS commented, raising concerns about limited sampling, seasonal variation, monitoring, potential effects on bull trout, and spill prevention; DEQ added an extra well sample, monitoring/effluent limits, and best-management practices.
- The Eleventh Judicial District Court granted summary judgment to challengers (WFF), finding DEQ failed to take a “hard look” at federal agencies’ concerns and failed to consider cumulative impacts of the full 450 gpm; the court vacated the permit.
- On appeal, the Montana Supreme Court held the controversy was not moot, reversed the district court, found DEQ’s process entitled to deference and adequate, and concluded DEQ permissibly limited its MEPA review to the 1.8 gpm permit action; the court also held vacatur was improper under the statutory remedial framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness | Permit term expired so controversy is moot | Vacatur occurred before expiration; relief remains live and renewal was not required while permit voided | Not moot; Court retained jurisdiction |
| "Hard look" under MEPA | DEQ inadequately responded to EPA/USFWS (limited data; bull trout concerns), so EA was arbitrary and capricious | DEQ supplemented data, imposed monitoring/limits and BMPs, and reasonably relied on agency expertise | DEQ took the requisite hard look; agency decision warranted deference; district court erred |
| Cumulative impacts / scope of review | DEQ should have considered cumulative impacts of DNRC’s 450 gpm water-right use when assessing MPDES permit | MPDES application sought only 1.8 gpm; future full discharge would require separate permit and EA, so DEQ properly limited review | DEQ properly limited its EA to the 1.8 gpm action; no requirement to assess full 450 gpm at this stage |
| Remedy (vacatur) | Vacatur appropriate for agency MEPA violations | Statute limits remedies; vacatur impermissible absent specific findings | District court erred to vacate; statutory remedial framework controls |
Key Cases Cited
- Bitterrooters for Planning, Inc. v. Mont. Dep’t of Envtl. Quality, 401 P.3d 712 (2017) (standard for reviewing agency MEPA decisions; arbitrary and capricious/unlawful review)
- Park Cty. Envtl. Council v. Mont. Dep’t of Envtl. Quality, 477 P.3d 288 (2020) (courts must "look closely" to agency process but defer to agency weighting of technical data)
- Mont. Wildlife Fed’n v. Mont. Bd. of Oil & Gas Conservation, 280 P.3d 877 (2012) (MEPA is procedural; requires agencies to take a hard look)
- Ravalli Cty. Fish & Game Ass’n v. Mont. Dep’t of State Lands, 903 P.2d 1362 (1995) (agency acted arbitrarily when it ignored pertinent data and failed to assess significant impacts)
- W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2009) (agency arbitrary where it ignored substantive agency comments and failed to make objective responses)
- Mont. Envtl. Info. Ctr. v. Mont. Dep’t of Envtl. Quality, 451 P.3d 493 (2019) (courts grant substantial deference to agency technical expertise in environmental assessments)