September 30, 2014
Submitted via electronic mail to wutbcomments@mt.gov & rithompson@mt.gov
Waste and Underground Tank Management Bureau
Solid Waste Program
Montana Dept. of Environmental Quality
PO Box 200901
Helena, MT 59620-0901
Re: Comments on South West Septic environmental assessments for application of
septage, gray water, and grease trap waste in Ennis, Montana, Madison County
Mr. Thompson & DEQ,
On behalf of Upper Missouri Waterkeeper, Inc., the nonprofit organization Cottonwood
Environmental Law Center, and the nonprofit organization Montana River Action, we submit the
following comments concerning the Environmental Assessments (“EAs”) for the proposed land
application of septage, gray water, and grease trap in the Madison Watershed outside Ennis,
Montana. (hereinafter “the Proposal” or “Proposal”). The Montana Department of Environmental
Quality (hereinafter “DEQ”) provided public notice of these applications and EAs with a revised
public comment deadline of September 30th, 2014.1
Upper Missouri Waterkeeper, Inc. is a non-profit water advocacy organization dedicated
exclusively to protecting and improving the ecological and aesthetic qualities of Southwest and
West-Central Montana’s Upper Missouri River Watershed, such territory including the instant
EA’s foci and the greater Madison watershed.
Cottonwood Environmental Law Center (“CELC”) is a non-profit, public interest
conservation group and law firm dedicated to the protection of the people, places, wildlife and
water of the West. Montana River Action is a non- profit organization strives to lead the evergrowing grassroots effort to preserve, protect, enhance, and restore Montana’s rivers, water
bodies and their watersheds for their natural, recreational, and cultural values.
All three organizations (collectively the “organizations”) have members that live, work
and/or recreate in, on, and around Montana’s landscapes and waterways, including the Madison
River Valley and Bear and Cedar Creeks. We therefore have direct interests in both the instant
EAs and any potential, negative impacts arising from authorization of the land application of
septage. We hereby also incorporate by reference the comments of local Jeffers citizens and
Upper Missouri Waterkeeper members Joel and Margaret Wachtler, attached as Exhibit A.
1 Public Notice of EAs for Septic Pumping is provided by DEQ, available online at:
http://www.deq.mt.gov/ea/SepticPumpers.mcpx
Executive Summary
The Madison Valley is one of Montana’s crown jewels. The valley’s natural center-point is the
Madison River, a world renowned blue-ribbon trout fishery and recreationalist paradise. Jeffers,
a small community with unique character, is situated right outside the Valley’s main population
hub of Ennis. Here ample Big Sky Country views inspire, while the variety of daily wildlife and
traditional ranching activities takes you back to a different time. Unfortunately for this area,
DEQ is proposing to authorize a suite of polluting activities that are scientifically and practically
incongruous with the Jeffers community, its human environment, and the Madison Valley’s
unique character.
Two Environmental Assessments (EAs) published by the DEQ fail to (1) meet legal
requirements for land application of septage; (2) fail to provide accurately characterize the
human environment proposed for septage application; (3) fail to accurately identify or discuss
reasonably foreseeable, potential environmental, economic, and aesthetic impacts of the
proposed land applications; fail to discuss the adequacy of proposed mitigation measures; and (4)
fail to account for significant public opposition to the proposed activities.
Population growth in the Madison Valley will ultimately require improved, modernized
wastewater treatment systems and sewers, items not yet in place beyond the principal urbanized
city of Ennis. Part of that pollution control effort could include land application of septage,
which we agree can be beneficial in certain situations and reduce overhead costs to ratepayers.
However, as a preqrequisite such wastes should first receive at least primary treatment to ensure
the protection of human health and the environment. Yet here, a third-world approach of simply
dumping raw sewage, trap grease, and gray water on unique, special landscapes is contemplated.
Second, land application of sewage locations should be thoroughly vetted for their propriety;
populated areas containing small business, families, local creeks and historically significant
artifacts should per se be inapplicable as application in these areas poses unacceptable,
unnecessary threats to local human health, the environment, and business.
The Environmental Assessments
Under Montana law, the principal legal mechanism to examine the environmental consequences
anticipated to flow from agency proposals is the Montana Environmental Policy Act (“MEPA”),
Mont. Code Ann. § 75-1-101, et seq. One of MEPA’s primary purposes is “to promote efforts
that will prevent or eliminate damage to the environment and biosphere and stimulate the health
and welfare of humans.” Id. § 75-1-102(2). MEPA does so by requiring State decisionmakers to
fully examine the impacts of proposed actions and to evaluate alternatives that may reduce or
avoid those impacts. Id. § 75-1-201. This environmental analysis is an important component of
the State’s constitutional obligation to prevent unreasonable environmental degradation. See
Mont. Const., Art. II, sec. 3; id. Art. IX, sec. 1; see also Mont. Code Ann. § 75-1-102 (MEPA
intended to implement State’s constitutional obligations with respect to environmental
protection).
Modeled after the National Environmental Policy Act, MEPA requires “the integrated use of the
natural and social sciences and the environmental design arts in planning and in decisionmaking
that may have an impact on the human environment.” Id. § 75-1-201(1)(b)(i)(A) (emphasis
added). MEPA directs that “it is the continuing responsibility of the state of Montana to use all
practicable means consistent with other essential considerations of state policy to improve and
coordinate state plans, functions, programs, and resources so that the state may … fulfill the
responsibilities of each generation as trustee of the environment for succeeding generations.” Id.
§ 75-1-103(2).
“MEPA requires that an agency be informed when it balances preservation against utilization of
our natural resources and trust lands.” Ravalli County Fish and Game Ass’n v. Dep’t of State
Lands, 273 Mont. 371, 384, 903 P.2d 1362, 1371 (1995). Thus, state decisionmakers are
prohibited from “reach[ing] a decision without first engaging in the requisite significant impacts
analysis.” Id.
Here, should DEQ decide to approve the Proposals without first preparing an EIS, the
Department will violate MEPA.
Failure to Produce an Environmental Impact Statement (EIS)
Under DEQ’s MEPA regulations, the agency “may, as an alternative to preparing an EIS,
prepare an EA whenever the action is one that might normally require an EIS, but effects which
might otherwise be deemed significant appear to be mitigable below the level of significance
through design, or enforceable controls or stipulations or both imposed by the agency or other
government agencies.” A.R.M. 17.4.607(4).
It appears DEQ prepared EAs rather than EIS’ on the assumption that “all of the impacts of the
proposed action have been accurately identified, that they will be mitigated blow the level of
significance, and that no significant impact is likely to occur.” A.R.M. 17.4.607(4). However,
such implicit conclusions are arbitrary as they lacked sufficient analysis and dismissed
potentially significant impacts to local landscapes and water resources, to human health, and to
local economics, aesthetics and archeological sites. Likewise, DEQ arbitrarily neglected to
address several additional regulatory criteria in its analysis of the Proposed Action’s
significance, or adequately analyze reasonable alternatives. Lastly, DEQ’s public participation
process concerning the Proposed Action can be characterized as stunted at best, and legally
insufficient at worst.
Impacts to Local Landscapes and Water Resources
The EAs mischaracterize and, in turn, have failed to adequately analyze, impacts to local
landscapes and water resources. The EAs assume that all land proposed for land application is
“agricultural land,” specifically heavily irrigated land used for alfalfa production. Inherent in this
statement is the EA’s assumption that septage, once applied and allegedly tiled into soils, will
quickly disperse, breakdown, and lend nutrient benefits to said soils. However, the EA’s
mischaracterize the landscapes and soils proposed for application and in turn, the significance of
the proposed actions.
For example, in the EA concerning Sections 2 and 11, Township 8 South, in the Cedar Creek
drainage, DEQ fails to rationalize its conclusion and purported support of land application when
the soils proposed for application are (a) part of the Cedar Creek alluvial fan; (b) the soils are
well drained, composed largely of sedimentary rocks with high ability transmit aqueous
substances; (c) groundwater levels are near surface, and can exceed the statutorily-imposed limit
of six feet where land application of sewage is not allowed; and (d) slopes of the locations
proposed for application are only generally – not specifically – delimited (see Soil Key 3.1)
The EA fails to rationally discuss how the proposed actions are permissible in light of
prohibitions in the ARM. Specifically, ARM 17.50.809(8) prohibits land application where a
seasonally high groundwater table exists at six feet (72 inches) or less below the surface. Here, in
Section 1.0, the EA admits that soils in Site 2 are 0-42 inches, yet there is no corresponding
discussion of why, therefore, land application is per se nonapplicable to that area. Further, ARM
17.50.809(2) specifies that land application is impermissible within 150’ of any state surface
water, including ephemeral or intermittent drainages and wetlands. The EA purports to
rationalize compliance by stating that all land application will remain outside the setback, but
fails to rationalize how the land application is permissible in Section 2 or Section 11 when both
are, hydrologically, ephemeral and/or intermittent drainages of Cedar Creek, and therefore land
application – per unambiguous language in the ARM – is per se inapplicable.
The plain denotation of “drainage” inherently references a corresponding, receiving waterway, in
this case Cedar Creek. Thus, in ascertaining what constitutes a “drainage” for the purposes of the
instant ARM, the applicable standard is the totality of the subwatershed of Cedar Creek. By its
plain language the ARM prohibit land application within 150’ of Cedar Creek’s drainage area,
such area encompassing the vast majority of lands proposed for land application in Sections 2
and 11.
DEQ replicated this same faulty rationale in supporting land application in the second EA
concerning Section 3, through which flows Bear Creek. Therefore we reiterate the same
arguments provided supra.
Furthermore, the two EA’s contain zero discussion of the potential for a legally cognizable
discharge of pollutants to groundwater (and potential requirement for a Montana GWPDES
permit), nor discussion of a legally cognizable discharge of a pollutant to surface waters
(requiring a MPDES permit). The EAs arbitrarily rely on assumed future compliance with
setbacks and tillage requirements when the landscapes in question, particularly the bench setting
proposed for land application within the Cedar Creek watershed, provide readily available data
showing the likelihood of significant septage etc movement via both groundwater and, in the
case of a precipitation event, via sheet flow.
In all the above cases the DEQ has apparently collected zero baseline data by which to
understand local conditions. Instead, the EAs rely on unproven conjecture and fail to consider
readily available data or science concerning the unsuitability of local landscape topography and
water resources that at the least, provide strong support for further inquiry in the form of an EIS,
and at most require outright denial of the applications based on incompatibility with the ARM.
We also hereby incorporate by reference discussion in Exhibit A, attached, concerning flaws in
the EAs methodology for determining ‘beneficial’ volumes of nitrogen to be applied in the form
of sewage sludge, specifically that discussion in pp. 17-21. In particular, we again enunciate the
distinct difference between semi-arid rangeland and irrigated alfalfa, differences that demand
dramatic site-specific considerations in terms of the propriety of land application itself, let alone
the volumes and locations contemplated for land application.
Impacts to Human Health
Sewage sludge land application poses significant, unevaluated threats to human health that the
EAs fail to examine. Exhibit A, attached and incorporated by reference, contains citations to peer
reviewed scientific literature readily available to DEQ concerning human health threats arising
from sewage sludge land application, none of which was considered in the EAs. Furthermore,
zero discussion is contained in the EAs concerning the potential for sewage sludge and like
materials to become airborne, or conversely carried by surface water sheet flow or groundwater
transmission, and in the process affect the human health or water quality of adjacent landowners.
The EA’s complete failure to analyze the reasonably foreseeable potential of these types of
impacts at the least demands performance of an EIS.
Impacts to Local Economics, Aesthetics, and Archeological Sites
The EA states that “the State Historic Preservation Office feels there is a low likelihood cultural
properties will be impacted…” and that as a result, dumping septic waste on these sites will have
no impact. Many local residents have provided testimony to DEQ concerning the well-known
presence of Native American artifacts on the sites proposed for land application. Yet the EAs
perform no further diligence to corroborate that Office’s “feeling,” and therefore reliance on such
anecdotal data in the face of readily available, and documented information to the contrary, is
arbitrary and capricious.
The EA also states that “the application of septage is similar to the day to day activities of
farming and ranching and will not cause a change in the aesthetics of the area.” However, no
evidence is proferred supporting this conclusion except for reliance upon the alleged
determination that septage land application is per se a beneficial use. Furthermore, the EAs fail
to discuss the larger economy of the Madison Valley, which is to say its recreational, outdoorsbased economic system, and the predicates that such economy relies upon: to wit, clean air,
water, and landscapes, in addition to a reputation incorporating those characteristics. The EAs
fail to discuss, much less reconcile, how the local outdoors-based, clean environment economy
will be affected by noxious land application of sewage, gray water, and trap grease wastes.
Furthermore, the EA fails to account for significant land use transformation within the Madison
Valley, particularly the lands surrounding Ennis and small communities like Jeffers. A booming
real estate market and healthy local businesses like the Jeffers Inn provide ample evidence of the
fact that the area proposed for land application is in fact no longer rural agriculture, but in fact a
transforming demographic with families, private residences, and small business. All of these
citizens and businesses exist in part due to the unique, existing quality of the local surroundings,
characteristics that will be permanently and significantly affected by land application of sewage
sludge materials and the like. The EAs fail to address these aesthetic issues and in fact
mischaracterize the proposed receiving locations, and therefore the EA’s determination of no
significant impacts is arbitrary and capricious.
Failure to Consider Additional Regulatory Criteria
In addition, DEQ failed to evaluate additional regulatory criteria in determining whether to
prepare an EIS. Specifically, DEQ failed to “consider the following criteria in determining the
significance of each impact on the quality of the human environment: … (d) the quantity and
quality of each environmental resource or value that would be affected, including the uniqueness
and fragility of those resources or values; (e) the importance to the state and to society of each
environmental resource or value that would be affected; … [and] (g) potential conflict with local,
state, or federal laws, requirements, or formal plans.” A.R.M. 17.4.608(1).
DEQ’s failure to evaluate these criteria was arbitrary and did not allow the agency to fully
consider the significance of the impacts of the proposed action. As such, the agency’s actions
violated MEPA. DEQ must, at minimum, revisit the proposals and perform sufficient diligence
in the form of two EIS’.
Failure to Adequately Consider Alternatives
Consideration of alternatives is the “heart” of the environmental review process, and “should
present the environmental impacts of the proposal and the alternatives in comparative form, thus
sharply defining the issues and providing a clear basis for choice among options by the
decisionmaker and the public.” Sagebrush Rebellion, Inc. v. Hodel, 790 F.2d 760, 768 (9th Cir.
1986) (quoting 40 C.F.R. § 1502.14).2
An agency must look at every reasonable alternative within the range dictated by the project’s
purpose and need that “is sufficient to permit a reasoned choice.” Alaska Wilderness Recreation
and Tourism Ass’n v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995). The duty to examine
alternatives applies even where the environmental consequences of the proposed actions require
preparation of an EA rather than an EIS. ARM 17.4.607(2)(b), .609(3)(f); Bob Marshall Alliance
v. Hodel, 852 F.2d 1223, 1228-29 (9th Cir. 1988).
MEPA defines an “alternative” as an “alternative approach or course of action that would
appreciably accomplish the same objectives or results as the proposed action.” ARM
17.4.603(2)(a)(i). It includes “no action or denial.” ARM 17.4.603(2)(a)(iii). The alternatives to
be considered must be “achievable under current technology and . . . economically feasible . . . .”
MCA 75-1- 201(1)(b)(iv)(C)(I); see also ARM 17.4.603(2)(b) (agency must consider alternatives
that are “realistic, technologically available, and that represent a course of action that bears a
logical relationship to the proposal being evaluated”).
In addition to evaluating alternative actions, the agency must “complete a meaningful no-action
alternative analysis,” which includes the “projected beneficial and adverse environmental, social,
and economic impact of the project’s noncompletion.” MCA 75-1-201(1)(b)(iv)(C)(IV).
Here, DEQ considered only three alternatives in the checklist EA: (1) so-called “no action”
alternative; (2) a denial alternative; and (3) the proposed action (as modified by DEQ). The EA
evaluated no waste treatment or management options other than those provided for in the
proposed action. In particular, DEQ failed to examine an alternative that would have required at
least primary treatment of all wastes proposed for land application primary to such action. DEQ
also failed to evaluate an alternative where the more polluting wastes (septage and gray water as
opposed to trap grease) would be sent to local wastewater treatment facilities and the lesserpolluting wastes be appropriately conditioned and authorized for application.
DEQ’s failure to consider other alternatives is puzzling because of the well-documented and
scientifically-grounded issues surrounding land application of untreated sewage and like wastes.
The EAs failed to evaluate any information readily available concerning land application of
untreated wastes, nor alternative waste treatment techniques, nor economic costs associated with
reasonably available alternatives.
DEQ’s analysis of the No Action Alternative was also inadequate. In preparing an EA, a state
agency must “complete a meaningful no-action alternative analysis” when it is “determined by
the agency to be necessary.” MCA 75-1-201(1)(b)(iv)(C)(IV), -201(1)(b)(i)(B). Here, DEQ
failed to meaningfully analyze a legitimate no action alternative because the EA only evaluated a
scenario where the applicant voluntarily withdrew the applications, as opposed to the
Department examining the propriety of authorizing the Proposed Action at different locations.
2 Montana courts look to federal cases applying the National Environmental Policy Act for guidance on MEPA’s
requirements. Ravalli County, 273 Mont. at 377, 903 P.2d at 1366. Under MCA 75-1-201(1)(b)(v), DEQ was required to evaluate a no action alternative because the
Proposals “involve unresolved conflicts concerning alternative uses of available resources.” This
MEPA provision is applicable to the Proposed Actions because they inherently involve
problematic approaches to management of sewage and like wastes.
Public Participation Failures
DEQ’s initial, inadequate notice of the Proposed Actions, alongside incorrect information on
comment deadlines disseminated to the public, created a chilling effect that harmed meaningful
public participation here. First, DEQ published notice of the Proposed Actions in the Madisonian
on July 31, 2014. However, the notice stated that the comment period ended on August 4, when
in fact it terminated on August 22, erroneously giving the public only 3 days to respond.
Second, when DEQ was alerted of this improper timeline -by citizens nonetheless – DEQ
extended the comment period to September 30, but failed to publish public notice thereof in the
Madisonian, again creating a chilling effect on meaningful public participation. Third, the
electronic mailing address for comments was defunct from August 8 until August 27, 2014. This
meant the Department could not receive, and the public could not officially submit, commentary.
As several courts have recognized, meaningful public participation requires, in part, both
effective notice and receipt and review of public comment. Here, the Proposed Actions have
been plagued by at best, significantly compromised public participation.
Failure to take a hard look
Finally, for the reasons described supra, DEQ’s flawed analysis of the potential impacts of the
proposed land applications of septage, gray water, and trap grease indicates that DEQ failed to
take a “hard look” at the environmental consequences of the approved activity in violation of
MEPA.
Unconstitutionality of Septage Application as a “Beneficial Reuse”
The Montana Constitution recognizes as inalienable “the right to a clean and healthful
environment,” and as a correlative responsibility requires that “[t]he State and each person shall
maintain and improve a clean and healthful environment in Montana for present and future
generations.” Mont. Const., Art. II, § 3; Art. IX, § 1. Here, the potential environmental impacts
of land application of untreated septage, gray water and trap grease —such as stream and
wetland pollution, likely contamination of groundwater, potential surface water discharges, and
human health concerns —constitute unreasonable environmental degradation and depletion of
natural resources.
The Constitution charges the Legislature with developing “adequate remedies” to prevent
unreasonable environmental degradation, Mont. Const., Art. IX, § 1. Here, the Legislature has
identified MEPA as such a remedy. Here, the Legislature has defined septage application as a per
se “non-significant activity” and thus exempt from certain procedural requirements. See MCA
75-5-317(2)(h). However, the Legislature cannot define a potentially environmentally harmful
activity – like land application of septage, etc – as per se beneficial and therefore substantively
exempt from meaningful review when it has found such review necessary to prevent
unconstitutional environmental degradation.
Conclusion
We respectfully request that DEQ withdraw its flawed EAs and deny the requested
authorizations on the basis of the insufficient environmental, cultural and human health analyses,
and violations of law discussed above. Should DEQ choose to move forward with the proposed
actions it must first, at minimum, perform further, requisite analysis in the forms of EIS’.
Respectfully submitted on behalf of the aforementioned organizations,
/s/ Guy Alsentzer
Executive Director
Upper Missouri Waterkeeper, Inc.
PO Box 128
Bozeman, MT 59771
T: 406.570.2202
Guy@UpperMissouriWaterkeeper.org
www.UpperMissouriWaterkeeper.org