Lakeside County Water & Sewer District Public Comment from Citizens for a Better FlatheadFrom:Cameron Dexter
To:Kalispell Meetings Public Comment
Cc:Mayre Flowers; Jennifer Tipton
Subject:EXTERNAL Lakeside County Water & Sewer District Comments for Council Review
Date:Tuesday, February 18, 2025 8:00:41 PM
Attachments:CBF & NSWA Ltr to DEQLCWSD.pdf
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Good evening,
Thank you for hearing our comments regarding lower Ashley Creek tonight. I am forwardingthe comments that Citizens for a Better Flathead and North Shore Water Alliance submitted to
DEQ regarding the groundwater infiltration permit and expansion project that LakesideCounty Water & Sewer District is currently is in review for.
Additionally, I am including the questions I asked tonight so that you may respond.
1. What is the ole of DEQ in approving this? Is EPA the final decision maker in thereclassification of lower Ashley Creek?
2. Can you direct us to any other Montana locations where this has been done? 3. Can you direct the public to a place to submit comments on the reclassification and
downgrading of water standards?
Thank you for your time and thank you for forwarding this on to the council members andappropriate city staff.
Cameron Dexter, J.D.
Director of Planning and PolicyCitizens for a Better Flathead
137 South Main StreetKalispell, MT. 59901
Flatheadcitizens.org
To: Sonja Nowakowski, DEQ Director and the DEQ Water Quality Division
RE: PERMIT NUMBER: MTX000307 and LCWSD Facility Expansion
Date: 2-10-2025
Please confirm timely receipt of this as there are conflicting notices published by DEQ of comments being
due by 11:59pm 2/10/25 which we have been relying on, and one saying prior to the close of business
day that we just discovered.
This letter constitutes Citizens for a Better Flathead's (CBF)1 comments on the Montana
Department of Environmental Quality's (DEQ) proposed groundwater discharge permit (Permit)
for Lakeside County Water and Sewer District (LCWSD) and its combined EA covering the
proposed addition of a Septic Receiving Station and upgrade of its Headworks Facility and Lift-
Station #10. Our comments will focus first on DEQ’s is solicitation of public comment on the
Permit and its finding that the proposed discharges would be non-significant under both the
Montana Water Quality Act (MWQA) and Montana Environmental Policy Act (MEPA). We will
then focus on other equally significant issues with the proposed expansion of the LCWSD
Facility expansion and current operations. We are joined by North Shore Water Alliance2 in
making these comments.
CBF retained the hydrogeology firm of Hydrosolutions and the ecology firm of Hauer
Environmental to assist in its review of DEQ's proposed permit and findings. Consultants
produced three expert reports regarding an assessment of hydrogeology and DEQ's findings
thereon, and assessment of DEQ's mounding analysis for the Rapid Infiltration Basins (RIBs),
and an assessment of nutrient fate, transport, and impact on undisputedly connected
downgradient surface water. These reports are expressly incorporated by reference and relied
upon within this comment letter and are attached as Exhibits A, B, and C to this comment.
Throughout DEQ's proposed Permit there is the overarching thematic assumption that LCWSD's
attempt to provide new wastewater treatment and disposal of a higher degree than it currently
possesses, and alongside the District's commitment to accept septic wastes from tens of
thousands of individuals across the County, outweighs any reasonably foreseeable concerns
about the Permit. We agree that the most expeditious path to addressing the chronic problem of
diffuse septic pollution in the Flathead Valley includes treatment at a centralized wastewater
1 The mission of Citizens for a Better Flathead is to foster citizen participation and champion sustainable
solutions needed to keep the Flathead ecologically and economically healthy. Since 1992, Citizens for a Better
Flathead has been a leader at the forefront of addressing the challenges that rapid growth is bringing to our
region. We work to protect the valley’s clean water, natural beauty, and friendly communities through solid
planning and policy solutions. https://www.flatheadcitizens.org/
2 https://www.northshorewateralliance.com/ , NSWA, PO Box 42, Somers, MT 59932
facility. But an expeditious process is only the "best" so long as it is sufficient to assure that
pollution discharges from LCWSD are restricted as required by the Clean Water Act and
Water Quality Act, and are proven adequate to protect state waters, including in particular
sensitive downgradient surface water. For the reasons explained below the draft permit will
not achieve these goals.
Our comments here-in will support our conclusion based on the science-backed findings of these
consultants and our additional research on solutions for addressing the growing volume of not
only septic waste in the county, but also the growth-induced increase in sewage waste handled by
the three cities and a number of additional county water and sewer districts, including LCWSD.
These entities are also facing growing challenges in treating and disposing of sewage waste
including a lack of sound options for the disposal of biosolids, a largely solid by-product of a
sewage treatment plant that is a growing health concern. Studies show biosolids contain
contaminates including PFAS, pharmaceuticals, other chemicals of concern, and metals that are a
growing health concern. In short, we conclude that DEQ should deny this groundwater
discharge permit at this site as well as the approval of the Septage Receiving Station at this
site and instead recommend selection of a more appropriate site away from such sensitive
and irreplaceable resources, including Flathead Lake and the creeks, sloughs, ponds,
wetlands and the Flathead River in this water-rich area just north of Flathead Lake.
Additionally, we would strongly encourage the county, the cities, and the sewer and water
districts to give priority to jointly exploring the feasibility of adopting new and exciting
technology that is harnessing sewage and septic waste as a valuable energy source. Finally, at
whatever future site is chosen, only by using the highest standard of care can we eliminate risk to
drinking water supplies, prevent harm to surface water, protect wildlife and fisheries, and be sure
that a once-in-a-generation investment in new municipal-scale wastewater treatment for the
Flathead Basin is a durable and science-based solution. We encourage DEQ to use this approach
if you receive future applications for such facilities.
I. An Overview of DEQ’s Proposal to Issue a Groundwater Discharge Permit to LCWSD
The Fact Sheet states that LCWSD currently utilizes a lagoon treatment and land disposal
wastewater system. The District is seeking a new groundwater discharge permit in conjunction
with a "proposed treatment system [that] will replace the lagoons with a mechanical treatment
plant and add disposal to groundwater in addition to land-applying during the summer months."
FS at 1.2. The referenced wastewater treatment facility upgrade is related to the March 19, 2024
Interlocal Agreement between Flathead County and LCWSD for accepting, treating, and
handling wastewater and biosolids from septage pumpers.
According to the Fact Sheet, "[t]his engineering design was combined with existing plans to
update LCWSD's wastewater treatment facility. The Fact Sheet provides a map describing layout
of the discharge RIBs, and corollary new proposed treatment works. Under the new proposed
treatment operations, "septage (received from septage pumpers operating across, presumably, the
Flathead Valley) will be unloaded into the septage receiving facility." "Septage will be mixed
into the [District's] municipal wastewater at a fixed ration to maintain a steady state...will go into
the secondary treatment facility, which will have a design treatment capacity of 900,000 gpd. The
wastewater treatment facility will be a mechanical treatment plan utilizing sequencing batch
reactor technology with biochemical nutrient reduction capabilities." FS at 2.2.
While providing details and some discussion on the connected new proposals of both a new
wastewater treatment facility and a new groundwater discharge permit, and stating in the Fact
Sheet “The scope of this permitting action is for the construction, operation, and maintenance of
the wastewater treatment and disposal system.” FS at 1.0 There is inadequate review of the
connect actions in Phase One and Phase Two of this major proposed and its immediate and
longer-term impacts over time.
DEQ's Fact Sheet repeatedly affirms that the Deltaic Aquifer receiving proposed discharges from
the LCWSD RIBs is "hydrologically connected to surface waters." FS at 2.6. The FS admits that
surrounding ponds, including Pond 4, already have high nutrient and total organic carbon
concentrations, especially during the summer months, but does not provide those values.
Similarly, the Fact Sheet recognizes that the nearest wadeable surface water, Wiley Slough, is
connected to the nutrient-impaired Lower Ashley Creek, and that nutrient pollutant additions to
Ashley Creek are capped based on requirements of the Flathead-Stillwater TMDL. Of note, that
TMDL Load Allocation for non point sources required a 91% reduction in total nitrogen across
the watershed (13.98 lbs/day TN) and 1.27 lbs/day total phosphorus (66% reduction needed).
DEQ asserts that because LCWSD's new, proposed comprehensive wastewater treatment and
disposal system can take on more wastewater connections, it will improve nonpoint source
loading in the Flathead Basin because the proposed advanced treatment will produce
considerably cleaner effluent than conventional (presumably, residential septic) treatment
systems.
DEQ then asserts that the nitrogen attenuation and phosphorus breakthrough analyses, and the
reasonable potential analyses, demonstrate that the effluent discharge should have no impact on
nutrient loading in Lower Ashley Creek. Notably, DEQ's fate and transport findings, including
the estimated nutrient pollutant concentrations after discharge to the aquifer, nutrient pollutant
concentrations at the end of the mixing zone, and nutrient pollutant concentrations at the
undisputed discharge into nearby surface waters, are all reliant on LCWSD's engineering firm's
MOUNDSOLV model. F.S. at 2.8, 2.8.3. At the same time DEQ asserts that the Flathead River,
which will receive flows of Ashley Creek, has not been assessed for impairment. No mention is
made of Flathead Lake's continued nutrient impairment or its nutrient TMDLs and the
assumptions contained therein.
The Fact Sheet states that proposed new treatment will allow the approximately 200,000 gpd
groundwater discharges to achieve total phosphorus concentrations of 1.5 mg/L, anticipated total
nitrogen concentration of 8 mg/L, and referencing nitrogen percentage improvement from the
current treatment works, and in comparison to conventional septic treatment. FS at 2.7, Table 4.
The proposed Final Effluent Limitations for LCWSD's discharges include an annual average of
more than 628 lbs/yr of phosphorus, and a quarterly average of 14.2 lbs/day load of nitrogen to
the receiving aquifer. FS at 5.3.
In Appendix A tables related to DEQ's groundwater dilution projections and non-degradation
non-significance analysis provide:
• RIB 1: a receiving aquifer's gross volume is 794 ft³/d, and nitrate concentrations at the
end of the mixing zone are projected at 7.45 mg/L.
• RIB 2: a receiving aquifer's gross volume of 1110 ft³/d, and nitrate concentrations at the
end of the mixing zone are projected at 7.04 mg/L.
• RIB 3: a receiving aquifer's gross volume of 1661 ft³/d, and nitrate concentrations at the
end of the mixing zone are projected at 6.65 mg/L.
Appendix C provides DEQ's Nitrate Attenuation Projections, which rely on application of
Darcy's Law to receiving aquifer characteristics, such characteristics being based upon the 5x
well slug tests performed by LCWSD's consultants. DEQ estimates anywhere from 3.5 to 7.7
years for nitrate to discharge to downgradient surface waters that range from 1160 ft to 2540 ft
downgradient, again based on aquifer characteristics such as receiving alluvium type, velocity,
porosity and transmissivity, and gradient. The estimated average feet per day traveled by
wastewater pollutants is .90.
In addition to the attenuation projections, which related essentially to the alleged dilution
capacities and travel time characteristics of the receiving aquifer, DEQ performed Denitrification
Rates for Nitrogen. DEQ estimated that it will take approximately 469 ft of travel for
denitrification to occur in the receiving alluvium sufficient to bring nitrogeneous concentrations
to or below .275 mg/L, which is the surface water standard for proximate surface waters.
Appendix D concerns DEQ's Phosphorus Breakthrough Analyses. RIB 1 is estimated to provide
30 years, RIB 2 is estimated to provide 46 years, and RIB 3 is estimated to provide 150 years
before breakthrough to surface water.
Appendix E represents DEQ's Water Quality Based Effluent Limit development, based on
application of a mass balance equations against aquifer characteristics garnered from LCWSD's
consultant reports submitted in support of the permit application. These analyses rely on aquifer
characteristics and fate and transport estimates derived from LCWSD's site area slug tests and
MOUNDSOLV modeling.
Appendix F represents total phosphorus WQBEL development, again based on application of a
mass balance equation against findings from LCWSD's consultant reports regarding site
characteristics and modeling. RIB 1 allows 291 lbs/yr of TP, and RIB 2 allows 337 lbs/yr of TP.
There is no data concerning load from RIB 3 for TP.
LCWSD's consultant, Water & Environmental Technologies (WET), also drafted a technical
memorandum examining proposed discharge limits, contained at page 70 of the Fact Sheet.
Notably, the memo confirms that receiving aquifer evaluation is based on five soil borings,
monitoring wells, and five rising-head slug tests, combined with AQTESLOV software modeling
aquifer characteristics. The memo notes that flow direction changes between northerly towards
Wiley Slough and southerly towards the Lake, based on high and low periods of the Lake.
Phosphorus breakthrough is estimated to downgradient surface water is estimated in decades,
based largely on phosphorus retention within the aquifer. Pathogen removal is estimated to
secure 4-log attenuation within 200 days and approximately 305 ft of horizontal travel, all based
upon modeled aquifer characteristics by LCWSD consultant. Nitrogen reductions in the aquifer
from the RIBs is based on assumed denitrification from input concentrations of 8.0 mg/L.
LCWSD's memo does not anticipate meaningful attenuation (AKA, dilution) based on,
apparently, the fact that the volume of RIB discharges will exceed the volume of groundwater in
the receiving aquifer, which of course is related to the anticipated mounding effects.
In sum, the proposed Permit's effluent limits are based wholly on LCWSD's
characterization of the receiving aquifer, its flow, and nutrient fate and transport to
proximate surface waters, including assumed phosphorus retention and nitrogen
denitrification processes.
II. Key Findings from CBF’s Expert Reports Demonstrate a Flawed Scientific Basis for the
Permit
CBF expressly incorporates by reference the analyses and findings of its expert reports, attached
to this comment letter. Below we quickly summarize non-exclusive key findings of those reports
that DEQ must consider and respond to before authorizing the proposed Permit.
a. Donohue Hydrogeology Report
This expert report examined the hydrogeologic analyses performed in support of the Permit and
its conclusions. It finds that the Permit's conclusions and findings are arbitrary and
capricious because of a lacking hydrogeologic baseline for the project area, including
complete omission of the presence of preferential pathways in the receiving aquifer and
hetereogeneous nature of the receiving aquifer more generally. The report identifies several
inconsistencies and conclusory findings regarding alleged nutrient pollutant fate and transport
based on the inadequate hydrogeologic analyses for the disposal area.
b. Meredith Mounding Report
This report examined the mounding evaluation and related findings for the Permit. The author
identified a fatal flaw: neither the applicant or DEQ recognized the heterogeneous nature of the
receiving Delta Aquifer. The report clarified that because DEQ and the applicant used modeling
to estimate mounding and nutrient pollutant transport based on the assumption of a homogeneous
aquifer, the Permit's findings are erroneous and wholly speculative. The author opines that
the Permit's effluent limits cannot be scientifically defensible without a far greater degree of
baseline diligence and a numerical groundwater model capable of estimating pollutant fate and
transport in heterogenous aquifers.
c. Hauer Ecological Report
This report evaluates the ecological conclusions of the draft Permit, including the assumed
nutrient fate and transport and potential impacts on water quality. A co-author is one of the
most knowledgeable PhD ecologists with over three decades of applied experience studying
the Flathead Basin's water quality, including the receiving aquifer and downgradient
surface waters. As such this expert report's findings carry significant value, particularly
when the gravamen of its analysis found a wholly lacking scientific basis for the Permit's
conclusion of nonsignificance, and so too found a very high likelihood that the Permit's
effluent limits would cause or contribute to violations of water quality standards in
downgradient surface waters, including a high likelihood of contributing to non-attainment
of assumptions underpinning the Flathead-Stillwater TMDLs for Lower Ashley Creek. The
report also specifically identifies the presence of preferential pathways in the receiving
heterogeneous - not homogeneous - aquifer, two relevant factors the Permit wholly fails to
identify or consider, and likewise finds the Permit's assumptions of nutrient attenuation,
retention, or denitrification erroneous based on undisputed characteristics of the receiving
aquifer and well-established metrics for such chemical processes.
III. The Proposed Groundwater Permit Is the Functional Equivalent of a Point Source
Discharge to Waters of the United States and Requires a NPDES Permit
DEQ is the delegated federal Clean Water Act authority responsible for implementing, among
other programs, Montana’s National Pollutant Discharge Elimination System (NPDES) program.
As delegated CWA authority with the mandate to give effect to the requirements of the CWA and
its implementing regulations, we are concerned that the instant state groundwater permit
should properly be viewed as a Montana Pollutant Discharge Elimination System
(MPDES) permit due to a hydrologic connection between groundwater receiving pollutant
discharges authorized under the proposed Permit, and the Permit’s admission that
pollutants from LCWSD discharges will in-fact enter downgradient Wiley’s Slough and
Ashley Creek.
As DEQ may be aware, the U.S. Supreme Court recently found that some point source
discharges to navigable waters through groundwater are regulated under the CWA. In its
decision on County of Maui v. Hawai’i Wildlife Fund, the Court held that the CWA “require[s] a
permit if the addition of the pollutants through groundwater is the functional equivalent of a
direct discharge from a point source into navigable waters.” In other words, the CWA prohibits
discharges of pollution “into navigable waters, or when the discharge reaches the same result
through roughly similar means.” 140 S. Ct. 1462 (2020).
The Court identified seven non-exclusive factors that may be relevant in that analysis, including
(1) transit time, (2) distance traveled, (3) the nature of the material through which the pollutant
travels, (4) the extent to which the pollutant is diluted or chemically changed as it travels, (5) the
amount of pollutant entering the navigable waters relative to the amount of the pollutant that
leaves the point source, (6) the manner by or area in which the pollutant enters the navigable
waters, and (7) the degree to which the pollution (at that point) has maintained its specific
identity.
The facts described above indicate that LCWSD’s discharges may be cognizable point source
discharges requiring a MPDES permit.
• Hydrologic connectivity: there is an undisputed hydrologic connection between the
shallow Delta Aquifer receiving proposed LCWSD discharges and nearby surface waters,
including Wiley’s Slough and Ashley Creek;
• Short Distance: the flow path distance between proposed discharge point and surface
water of Wiley Slough is approximately ¼ mile;
• Transport Time: the Permit presumes that nitrogeneous pollutants will take at least 3
years to enter surface water, and estimates phosphorus breakthrough longer than 50 years.
However, the basis for these findings relies on the use of a fate and transport model
appropriate for evaluating homogeneous aquifers, not heterogeneous aquifers such as the
receiving Delta Aquifer. Thus, for the purposes of this CWA factor there is no dispute
that LCWSD’s nutrient pollutants will in-fact enter downgradient surface water,
and there is not an evidentiary basis supporting DEQ’s conclusion of such transport
taking several years. Rather, our experts opined that such transport could, based
upon the presence of preferential pathways which DEQ failed to evaluate, take a
matter of days to weeks;
• Aquifer characteristics: the receiving Delta Aquifer is largely composed of sand alluvium
and similar riverine deposits with limited ability to chemically alter nutrient pollutants
contained in wastewater discharges;
• The aquifer is also several orders smaller in terms of gross volume than proposed
wastewater discharges aggregated over time, meaning the natural chemical properties
of the alluvium would rapidly become altered to reflect pollutant concentrations of
receiving wastewater, and not vice-versa, and therefore dilution capacity of the aquifer
is unlikely if not wholly speculative;
• The receiving aquifer contains preferential pathways with a high likelihood of
transmitting wastewater pollutants at higher transport rates, and therefore also at
likely higher concentrations, than anticipated under the draft permit. Neither DEQ
nor the applicant's analyses contemplated the potential for a heterogeneous aquifer
or the existence of preferential pathways and resulting effects on presumed nutrient
pollutant reductions;
• Chemical Properties of Pollutants Entering Surface Water: Based on expert reports and
the limited assimilative capacity of the receiving aquifer, the likely concentration of
discharged nutrient pollutants upon flowing into downgradient Wiley Slough and Ashley
Creek – such occurrence notably being inevitable, not speculative based on undisputed
hydrologic connectivity – would likely be significantly elevated above numeric nutrient
criteria applicable to wadeable streams of the Flathead. As presented in expert reports
DEQ's assumed phosphorus retention and nitrogen assimilation are fallacies lacking
scientific support based on available site-specific data. Moreover, DEQ's assumed
nutrient reductions fail to consider the high-likelihood of preferential subsurface
pathways in the receiving aquifer and which can significantly alter nutrient loading to
downgradient surface water such as Wiley Slough and Ashley Cr.
DEQ has the authority under its rules and as CWA delegated authority to withdraw the
instant permit and instruct the applicant to apply for a MPDES permit. DEQ must re-
consider its determinations and draft permit in light of expert reports provided with this
comment letter, and the ecological significance and uncertainty of authorizing more
nutrient pollution to a river system already experiencing nutrient pollution problems and
which is impaired for such pollutants. Further, DEQ should explain the poor precedent
LCWSD's permit would set in allowing a new groundwater discharge into the Flathead-
Stillwater Planning Area when there has not been necessary progress in complying with
waste-load or load allocations established under TMDLs for downgradient surface waters
that will undisputedly receive pollutants of concern contained within LCWSD discharges.
IV. Both Federal NPDES Requirements and State WQA Requirements Demonstrate that
LCWSD’s Permit Will Be Illegal Because It Has Potential to Cause or Contribute to
Violations of Standards
a. Water Quality-Based Effluent Limitations Are Required Where a Source is
Causing or Contributing to a Violation of Water Quality Standards
All dischargers satisfying the "functional equivalent" test discussed above are required to meet
the requirements set out in the Clean Water Act and federal regulations. If, as here, the
technology-based limits required by the statute and regulations are not sufficient to ensure that a
discharge will not cause or contribute to violations of water quality standards, permits must
include water quality-based effluent limits (WQBEL).3 33 U.S.C. §§ 1311(b)(1)(C), 1342(a)(2)
(“[T]here shall be achieved . . . any more stringent limitation, including those necessary to meet
water quality standards . . . established pursuant to any State law or regulations [.]”); see also, id.
§§ 1311(e), 1312(a), 1313(d)(1)(A), (d)(2), (e)(3)(A); 40 C.F.R. §§ 122.4(a), (d). Federal
regulations are made applicable to delegated states by 40 C.F.R. § 123.25(a).
The agency issuing a permit “is under a specific obligation to require that level of effluent
control which is needed to implement existing water quality standards without regard to the
limits of practicability.” S. Rep. No. 92-414, at 43 (1971). Because WQBELs are set irrespective
of costs and technology availability, they further the technology-forcing policy of the CWA. See
NRDC v. U.S. E.P.A., 859 F.2d 156, 208 (D.C. Cir. 1987) (“A technology-based standard discards
its fundamental premise when it ignores the limits inherent in the technology. By contrast, a
water quality-based permit limit begins with the premise that a certain level of water quality will
be maintained, come what may, and places upon the permittee the responsibility for realizing that
goal.”); see also Riverkeeper, Inc. v. U.S. E.P.A., 475 F.3d 83, 108 (2d Cir. 2007) (Sotomayor, J.)
(referencing the Act’s “technology-forcing imperative”), rev’d sub nom by Entergy Corp, 556
U.S. 208.
WQBELs must be set at a level that achieves water quality standards developed by the states for
waters within their boundaries. See 33 U.S.C. §§ 1313(a)(3), (c)(2)(a); 40 C.F.R. Part 131; PUD
No. 1 of Jefferson Cnty. v. Wash. Dept. of Ecology, 511 U.S. 700, 704–707 (1994); WAC 173-
220-130(1)(b)(i) and (iii), (2), (3)(b); Port of Seattle v. Pollution Control, 90 Pd.3d 659, 677
(Wash. 2004) (“NPDES permits may be issued only where the discharge in question will comply
with state water quality standards.”); Defenders of Wildlife v. Browner, 191 F.3d 1159, 1163 (9th
Cir. 1999). Such water quality standards consist of designated uses for waters and water quality
criteria (both numeric and narrative) necessary to protect those uses. 33 U.S.C. § 1313(c)(2)(a);
40 C.F.R. §§ 131.10–.11. Under the CWA’s “antidegradation policy,” state standards must also
3 Water Quality-based Effluent Limitations (WQBELs).
protect existing uses of waters and prevent their further degradation. 40 C.F.R. § 131.12; see also
ARM 17.30.637, Circular DEQ 12-A.
EPA’s permitting regulations mirror the statutory requirement for WQBELs. 40 C.F.R. §
122.44(d). NPDES effluent limitations must control all pollutants that are or may be discharged
at a level “which will cause, have the reasonable potential to cause, or contribute to an excursion
above any State water quality standard, including State narrative criteria for water quality.” 40
C.F.R. § 122.44(d)(1)(i). Accordingly, WQBELs in NPDES permits must be “derived from” and
comply with all applicable water quality standards. 40 C.F.R. § 122.44(d)(1)(vii). WQBELs are
typically expressed numerically, but when “numeric effluent limitations are infeasible,” a permit
may instead require “[b]est management practices (BMPs) to control or abate the discharge of
pollutants.” 40 C.F.R. § 122.44(k)(3). However, “[n]o permit may be issued: . . . [w]hen the
imposition of conditions cannot ensure compliance with the applicable water quality
requirements of all affected States.” 40 C.F.R. § 122.4(d).
When EPA or states establish WQBELs, they must translate applicable water quality standards
into permit limitations. See Trustees for Alaska v. U.S. E.P.A., 749 F.2d 549, 556–57 (9th Cir.
1984) (holding that a permit must do more than merely incorporate state water quality
standards—it must translate state water quality standards into the end-of-pipe effluent limitations
necessary to achieve those standards). As the D.C. Circuit put it, “the rubber hits the road when
the state-created standards are used as the basis for specific effluent limitations in NPDES
permits.” American Paper Inst., Inc. v. U.S. E.P.A, 996 F.2d 346, 350 (D.C. Cir. 1993). NPDES
“permits authorizing the discharge of pollutants may issue only where such permits ensure that
every discharge of pollutants will comply with all applicable effluent limitations and
standards[.]” Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 498 (2d Cir. 2005) (emphasis in
original).
Although numeric criteria are easier to translate into a permit limitation, permit writers must also
translate state narrative standards. See id. EPA regulations clearly specify that narrative criteria
must be evaluated and must be met, and that limits must be established to ensure they are met.
See 40 C.F.R. §§ 122.44(d)(1) (limits must be included to “[a]chieve water quality standards
established under section 303 of the CWA, including State narrative criteria for water quality”);
122.44(d)(1)(i) (limitations must include all parameters “including State narrative criteria for
water quality”); 122.44(d)(1)(ii) (reasonable potential must be evaluated for “in-stream excursion
above a narrative or numeric criteria”); 122.44(d)(1)(v) (WET tests required where reasonable
potential exists to cause or contribute to a narrative criterion excursion unless chemical-specific
pollutants are “sufficient to attain and maintain applicable numeric and narrative State water
quality standards”); 122.44(d)(1)(vi) (options for establishing limitations where reasonable
potential exists for a discharge to cause or contribute to an excursion above a narrative criterion)
(emphases added). As the court in American Paper found, when it upheld EPA’s permitting
regulations pertaining to narrative criteria, faced with the conundrum of narrative criteria “some
permit writers threw up their hands and, contrary to the Act, simply ignored water quality
standards including narrative criteria altogether when deciding upon permit limitations. Id. at 350
(emphasis added); see also, id. at 353, “[EPA’s] initiative seems a preeminent example of gap-
filling in the interest of a continuous and cohesive regulatory regime[.]”).
EPA has explained that a WQBEL is “[a]n effluent limitation determined by selecting the most
stringent of the effluent limits calculated using all applicable water quality criteria (e.g., aquatic
life, human health, wildlife, translation of narrative criteria) for a specific point source to a
specific receiving water.” EPA, NPDES Permit Writers’ Manual, Appendix A at A-17 (Sept.
2010) (hereinafter “EPA Manual”). Available at http://www.epa.gov/npdes/pubs/pwm_app-a.pdf
. The first step in establishing a WQBEL is determining if one is required. 40 C.F.R. §
122.44(d)(1) (“Limitations must control all pollutants or pollutant parameters (either
conventional, nonconventional, or toxic pollutants) which the Director determines are or may be
discharged at a level which will cause, have the reasonable potential to cause, or contribute to an
excursion above any State water quality standard, including State narrative criteria for water
quality.”).
Because one requirement in issuing a WQBEL is both to determine if the discharge, collectively
with other sources of the same pollutant, are causing or contributing to violations of water
quality standards, and to limit that discharge accordingly, the federal regulations require the
permit writer to assess the role of other sources in causing the violation. Id. at § (d)(1)(ii)
(“When determining whether a discharge causes, has the reasonable potential to cause, or
contributes to an in-stream excursion above a narrative or numeric criteria within a State water
quality standard, the permitting authority shall use procedures which account for existing
controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant
parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole
effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water.”). If,
having conducted this evaluation, the permit writer determines that a discharge “causes, has the
reasonable potential to cause, or contributes to an instream excursion above the allowable above
the allowable ambient concentration of a State numeric criteria within a State water quality
standard for an individual pollutant, the permit must contain effluent limits for that pollutant.” Id.
at § (d)(1)(iii). Where a state finds a reasonable potential to cause or contribute to a violation of
narrative criteria for which the state has no numeric criteria, the federal regulations establish
methods for establishing effluent limits. Id. at § (d)(1)(vi)(A- C).
The matter of determining whether a discharge is causing or contributing to a violation of
standards is not resolved by the permit writer’s merely looking at the point of discharge and
whether it is on the state’s 303(d) list for a parameter or pollutant discharged or affected by a
parameter or pollutant in the discharge. First, there is a question of the nature of the parameter or
pollutant discharged and how it is anticipated to affect water quality. Nitrogen discharges are
among those pollutants that have a far-field effect, creating impacts on dissolved oxygen and
algal growth—which can be both deleterious by itself and contribute to lowered dissolved
oxygen—far away from the point of discharge. See, e.g., EPA Manual at 176 “Nutrients are
another class of pollutants which would be examined for impacts at some point away from the
discharge. The special concern is for those waterbodies quiescent enough to produce strong algae
blooms. The algae blooms create nuisance conditions, dissolved oxygen depletion, and toxicity
problems (i.e., red tides or blue-green algae); id. at 198 (“[pollutants] such as BOD may not
reach full effect on dissolved oxygen until several days travel time down-river.”).
For pollutants such as nutrients, the Environmental Appeals Board (EAB) has held that:
The plain language of the regulatory requirement (that a permit issuer determine whether
a source has the “reasonable potential to cause or contribute” to an exceedance of a water
quality standard) does not require a conclusive demonstration of “cause and effect.” See
In re Upper Blackstone Water Pollution Abatement Dist., NPDES Appeal Nos. 08-11
through 08-18 & 09-06, slip op. at 31-34 & n.29 (EAB May 28, 2010), 14 E.A.D. ___.
In re Town of Newmarket, NPDES Appeal No. 12-05, slip op. at 54 n.23 (EAB Dec. 2, 2013)
(emphasis added). In other words, the fact of a source’s contributing to loading of a pollutant that
has been identified to be causing a water quality impairment is sufficient to support a reasonable
potential determination.
Second, there is a question as to whether a waterbody must actually be impaired in order for a
discharge to present a reasonable potential to cause or contribute to violations of water quality
standards. Again, the EAB provides assistance on the plain meaning of the permitting regulations
and the policy rationale behind them:
NPDES regulations do not support the City’s contention that a permit authority must
include effluent limits only for the pollutants discharged into receiving waters that are
identified as impaired on the state’s 303(d) list. ***
NPDES permitting under CWA section 301 applies to individual discharges and
represents a more preventative component of the regulatory scheme [than 303(d)] in that,
under section 301, no discharge is allowed except in accordance with a permit. Moreover,
the CWA’s implementing regulations require the Region to include effluent limits in
discharge permits based on the reasonable potential of a discharge facility to cause or
contribute to exceedances of water quality standards, even if the receiving water body is
not yet on a state’s 303(d) list. See 40 C.F.R. § 122.44(d)(1)(i). Although a 303(d) listing
could presumably establish that water quality standards are being exceeded, necessitating
an appropriate permit limit, the Region is not constrained from acting where a
waterbody has not yet been placed on the 303(d) list. Id.; see also In re Upper
Blackstone Water Pollution Abatement Dist., 14 E.A.D. 577, 599 (EAB 2010)
(explaining that the NPDES regulations require a “precautionary” approach to
determining whether the permit must contain a water quality-based effluent limit for a
particular pollutant), aff’d. 690 F.3d 9 (1st Cir. 2012), cert. denied, 133 S. Ct. 2382
(2013).
In re City of Taunton at 38-39.
Third, there is the question of whether a permit writer can simply not include an effluent limit
because to do so is challenging. Clearly the statute and regulations demonstrate that the answer is
“no.” Federal courts agree. Not long ago, the Second Circuit cited with approval its decision in
Waterkeeper All., Inc. v. EPA, 399 F.3d 486, 498 (2d Cir. 2005) for the proposition that “NPDES
permits ‘may issue only where such permits ensure that every discharge of pollutants will
comply with all applicable effluent limitations and standards.’” N.R.D.C. v. U.S. EPA, 808 F.3d
556, 578 (2d Cir. 2015) (emphasis in original). Moreover:
Even if determining the proper standard is difficult, EPA cannot simply give up and
refuse to issue more specific guidelines. See Am. Paper Inst., Inc. v. EPA, 996 F.2d 346,
350 (D.C. Cir. 1993) (articulating that, even if creating permit limits is difficult, permit
writers cannot just “thr[o]w up their hands and, contrary to the Act, simply ignore[] water
quality standards including narrative criteria altogether when deciding upon permit
limitations”). Scientific uncertainty does not allow EPA to avoid responsibility for
regulating discharges. See Massachusetts v. EPA, 549 U.S. 497, 534 (2007) (“EPA
[cannot] avoid its statutory obligation by noting the uncertainty surrounding various
features of climate change and concluding that it would therefore be better not to regulate
at this time.”).
Id.. The First Circuit and EAB have agreed that uncertainty does not excuse the permit writer
from its obligation to set permit limits. Upper Blackstone Water Pollution Abatement District v.
U.S. EPA, 690 F.3d 9 (1st Cir. 2012), cert. denied, 133 S. Ct. 2382 (2013); In re City of Taunton
at 61-62.
Fourth, there is a question as to whether in the absence of a Total Maximum Daily Load (TMDL)
a permit must comply with the statute and regulations that require compliance with water quality
standards. There is no question that it must; the lack of a TMDL is no defense for a failure to find
reasonable potential and to establish a WQBEL. As the First Circuit has explained,
TMDLs take time and resources to develop and have proven to be difficult to get just
right; thus, under EPA regulations, permitting authorities must adopt interim measures to
bring water bodies into compliance with water quality standards. Id. § 1313(e)(3); 40
C.F.R. § 122.44(d); see also, e.g., 43 Fed. Reg. 60,662, 60,665 (Dec. 28, 1978) (“EPA
recognizes that State development of TMDL’s and wasteload [WLA] allocations for all
water quality limited segments will be a lengthy process. Water quality standards will
continue to be enforced during this process. Development of TMDL’s . . . is not a
necessary prerequisite to adoption or enforcement of water quality standards . . . .”).
Upper Blackstone Water Pollution Abatement District v. U.S. EPA, 690 F.3d 9 (1st Cir. 2012),
cert. denied, 133 S. Ct. 2382 (2013) n 8. The First Circuit also explained that waiting for the
completion of exhaustive studies is equally unacceptable:
[N]either the CWA nor EPA regulations permit the EPA to delay issuance of a new
permit indefinitely until better science can be developed, even where there is some
uncertainty in the existing data. . . . The Act’s goal of “eliminat[ing]” the discharge of
pollutants by 1985 underscores the importance of making progress on the available data.
33 U.S.C. § 1251(a)(1).
Id. Likewise, the EAB recently held the same:
Where TMDLs have not been established, water quality-based effluent limitations in
NPDES permits must nonetheless comply with applicable water quality standards. In
discussing the relationship between NPDES permitting and TMDLs, EPA has explained
that the applicable NPDES rules require the permitting authority to establish necessary
effluent limits, even if 303(d) listing determinations and subsequent TMDLs lag behind.
54 Fed. Reg. 23,868, 23,878, 23,879 (June 2, 1989); see also In re Upper Blackstone
Water Pollution Abatement Dist., 14 E.A.D. 577, 604-05 (EAB 2010) (expressly
rejecting the idea that the permitting authority cannot proceed to determine permit
effluent limits where a TMDL has yet to be established) , aff’d. 690 F.3d 9 (1st Cir.
2012), cert. denied, 133 S. Ct. 2382 (2013).
In re: City of Taunton Department of Public Works, NPDES Appeal No. 15-08, slip op. at 11
(EAB May 3, 2016); see also id. at 40-41 (citing, inter alia, 54 Fed. Reg. 23,868, 23,879 (June 2,
1989) (clarifying in the preamble to 40 C.F.R. § 122.44 that subsection (d)(1)(vii) “do[es] not
allow the permitting authority to delay developing and issuing a permit if a wasteload allocation
has not already been developed and approved”).
The law clearly establishes that an NPDES permit may not be issued for discharges that may
cause or contribute to violations of water quality standards. While “cause” may be considered to
refer to the sole source of a violation, “contribute” sweeps all sources of a pollutant into the
regulatory requirements, including the permittees being considered for this potential Permit.
Federal regulations provide only very limited exceptions. For example, 40 C.F.R. §
122.44(d)(1)(ii) requires that in determining reasonable potential a permit authority “use
procedures which account for existing controls on point and nonpoint sources of pollution.”
Last, there may be a question related to whether the waterbody is impaired but is not currently
listed on the state’s EPA-approved 303(d) list. However, EPA's rules make clear that in issuing
permits "the State shall take into consideration the water quality standards of downstream waters
and shall ensure that its water quality standards provide for the attainment and maintenance of
the water quality standards of downstream waters.” 40 C.F.R. § 131.10(b). Moreover, the key
here is impairment, not the technicality of 303(d) listing. See In re: City of Taunton Department
of Public Works, at 38 (“NPDES regulations do not support the City’s contention that a permit
authority must include effluent limits only for the pollutants discharged into receiving waters that
are identified as impaired on the state’s 303(d) list.”). The finding of reasonable potential has
repeatedly been deemed to be a low bar in order to ensure that NPDES permits protect water
quality. EPA regulations require that NPDES limits “must control all pollutants” that “may be
discharged at levels” that will cause or contribute to violations. 40 C.F.R. § 122.44(d)(1)(i)
(emphasis added). The emphasis is regulation of discharges that may be a problem. As the EAB
observed of EPA’s action of issuing a permit with nutrient limits,
the Region observed that “[e]ven if the evidence is unclear that a pollutant is currently
causing an impairment, a limit may be required if the pollutant has the reasonable
potential to cause, or contribute to an exceedance of a water quality standard (i.e., the
permit limit may be preventative).” Response to Comments at 36. The Region also noted
that “the pollutant need not be the sole cause of an impairment before an NPDES limit
may be imposed; an effluent limit may still be required, if the pollutant ‘contributes’ to a
violation.” Id. (citing In re Town of Newmarket, NPDES Appeal No. 12-05, slip op. at 54
n.23 (EAB Dec. 2, 2013), 16 E.A.D. ___). Ultimately, the Region concluded that the
City’s discharges cause, have a reasonable potential to cause, or contribute to nitrogen-
related water quality violations in the Taunton Estuary and Mount Hope Bay. . . . As
such, CWA regulations required the Region to impose a nitrogen limit in the Permit. See
40 C.F.R. § 122.44(d)(1)(vi)[.]
In re City of Tauton at 37.
b. Water Quality Standards Applicable to Nutrient Discharges
Water quality standards are defined as the designated beneficial uses of a water body, in
combination with the numeric and narrative criteria to protect those uses and an antidegradation
policy. 40 C.F.R. § 131.6. The CWA requires numeric criteria adopted in water quality standards
to protect the “most sensitive use.” 40 C.F.R. § 131.11(a)(1).
However, since that is not always possible, the task of evaluating whether standards have
been met also requires an assessment of the impacts to designated beneficial uses. In PUD No. 1
of Jefferson County v. Washington Department of Ecology, 114 S. Ct. 1900, 1912 (1994), the
U.S. Supreme Court underscored the importance of protecting beneficial uses as a
“complementary requirement” that “enables the States to ensure that each activity—even if not
foreseen by the criteria—will be consistent with the specific uses and attributes of a particular
body of water.” The Supreme Court explained that numeric criteria “cannot reasonably be
expected to anticipate all of the water quality issues arising from every activity which can affect
the State’s hundreds of individual water bodies.” Id.4
4 EPA regulations implementing section 303(d) of the CWA reflect the independent importance
of each component of a state’s water quality standards:
For the purposes of listing waters under §130.7(b), the term “water quality standard
applicable to such waters” and “applicable water quality standards” refer to those water
quality standards established under section 303 of the Act, including numeric criteria,
narrative criteria, waterbody uses, and antidegradation requirements.
40 C.F.R. § 130.7(b)(3). When EPA adopted these regulations it clearly stated the expectations it
had of states:
In today’s final action the term “applicable standard” for the purposes of listing waters
under section 303(d) is defined in § 130.7(b)(3) as those water quality standards
established under section 303 of the Act, including numeric criteria, narrative criteria,
waterbody uses and antidegradation requirements. In the case of a pollutant for which a
numeric criterion has not been developed, a State should interpret its narrative criteria by
applying a proposed state numeric criterion, an explicit State policy or regulation (such as
applying a translator procedure developed pursuant to section 303(c)(2)(B) to derive
numeric criteria for priority toxic pollutants), EPA national water quality criteria
guidance developed under section 304(a) of the Act and supplemented with other relevant
information, or by otherwise calculating on a case-by-case basis the ambient
concentration of the pollutant that corresponds to attainment of the narrative criterion.
In short, a permitting agency cannot ignore the narrative criteria and use only numeric criteria
where either numeric criteria do not exist or where the numeric criteria fall short of providing
full support for designated uses.
Of greatest concern regarding the proposed Permit is the potential for nutrient discharges
to groundwater to reach hydrologically-connected and downgradient surface water and, in
conjunction with other sources and the existing, degraded baseline, to continue or
exacerbate those degraded water quality conditions. In Montana "existing uses of state waters
and the level of water quality necessary to protect those uses must be protected and maintained."
MCA § 75-5-303(1). Further, "the quality of high-quality water must be maintained" unless
degradation is authorized or a discharge is exempted from review. MCA § 75-5-303(2). Federal
regulations explain the meaning of “existing uses” that may not be designated uses: Tier I
requires the maintenance and protection of “[e]xisting instream water uses and the level of water
quality to protect the existing uses[.]” 40 C.F.R. § 131.12(a)(1). Existing uses are “those uses
actually attained in the water body on or after November 28, 1975, whether or not they are
included in the water quality standards.” 40 C.F.R. § 131.13(e).
These mandates reflect the constitutional obligations of DEQ under Art. II, section 3, and
Art. IX of the Montana Constitution, including the intent that implementation of the WQA
"provide adequate remedies for the protection of the environmental life support system
from degradation and provide remedies to prevent unreasonable depletion and degradation
of natural resources." MCA § 75-5-102(1). "A purpose of [the WQA] is to provide
additional and cumulative remedies to prevent, abate, and control the pollution of state
waters." Id. In addition to the plain purposes of the WQA, DEQ is required to implement
water quality standards in a manner consistent with federal law under the Clean Water
Act. ARM 17.30.619.
Numeric nutrient criteria are applicable to wadeable streams, including Wiley Slough and Ashley
Creek, downgradient of LCWSD's proposed discharge. Total nitrogen limit is .275 mg/L, and
phosphorus is .025 mg/L. Circular DEQ 12-A. Surface waters classified as C-1 are to maintained
suitable for bathing, swimming, and recreation and growth and propagation of salmonid fishes
and associated aquatic life. Further classifications are found at ARM 17.30.608, and at17.30.627,
Today’s definition is consistent with EPA’s Water Quality Standards regulation at 40
CFR part 131. EPA may disapprove a list that is based on a State interpretation of a
narrative criterion that EPA finds unacceptable.
which notably prohibits changes in dissolved oxygen for lower Ashley Creek below 5 mg/L
during summer periods.
c. Applicable State Regulations
ARM 17.30.637 provides that "No wastes may be discharged and no activities conducted such
that the wastes or activities, either alone or in combination with other wastes or activities, will
violate, or can reasonably be expected to violate, any of the standards." DEQ has explicit
authority to eliminate or minimize pollution from non-point sources. ARM 17.30.637(5), MCA §
75-5-402. Further, DEQ is required to conduct permitting to ensure that "State surface waters
must be free from [.] discharges that will: (e) create conditions which produce undesireable
aquatic life." ARM 17.30.637. Indeed, ARM 17.30.603 states that standards are adopted to
establish a basis for limiting the discharge of pollutants which affect prescribed beneficial uses of
surface water, and specifically state that the aforementioned prohibitions apply to all surface
waters and DEQ decision-making thereon.
d. Future, Prospective Monitoring of LCWSD's Discharges is Not a Replacement
for Clear and Convincing Evidence Now, at the Permitting Stage, that the
Proposed Discharges Will Not Cause or Contribute to Degradation of Surface
Water or, In Combination With Other Pollution Sources, Cause or Have the
Reasonable Potential to Violate any Water Quality Standard
To ensure permit effluent limitations are effective and enforceable, all NPDES permits must
contain representative effluent monitoring and reporting. 33 U.S.C. §§ 1318(a), 1342(a)(2); 40
C.F.R. § 122.44(i). Permits “shall require” permittees to “install, use, and maintain such
monitoring equipment or methods” required to “determin[e] whether [they are] in violation” of
an effluent limitation. 33 U.S.C. § 1318(a)(2)(A)(iii). Federal regulations similarly require
representative monitoring “[t]o assure compliance with permit limitations” and “to yield data
which are representative of the monitored activity.” Id. § 1342(a)(2); 40 C.F.R. § 122.48(b). Such
monitoring requirements are necessary to facilitate permit enforcement. Nat. Res. Def. Council v.
Cty. of Los Angeles, 725 F.3d 1194, 1208 (9th Cir. 2013); Nat. Res. Def. Council, 808 F.3d at
580–81; Food & Water Watch, 20 F.4th at 515–16.
DEQ regulations require that every permit “provide for compliance with the applicable requirements
of the [MWQA], or rules adopted under the Act,” ARM 17.30.1311(1), and DEQ must assure that no
wastes are discharged, either alone or in combination with other wastes, that could reasonably be
expected to violate any standard. ARM 17.30.637(2). DEQ’s rules mandate that all groundwater
discharge permits contain representative monitoring to ensure compliance with effluent standards.
See ARM 17.30.1031 (requiring conditions that will assure compliance); see also ARM
17.30.1342(10) (similar).5 DEQ’s regulations also adopt the federal monitoring regulations by
reference. ARM 17.30.1344 (incorporating 40 C.F.R. § 122.43, which itself adopts by reference the
requirements found at 40 C.F.R. § 122.44 and 40 C.F.R. § 122.48).
Here, DEQ has proposed five different groundwater monitoring locations to assess compliance.
5 The MWQA expressly gives DEQ the power to require monitoring, § 75-5-602, MCA, and federal law and DEQ’s
constitutional duties make it a requirement.
However, and as described within the expert reports, the scientific basis for presumed nutrient fate
and transport and estimated impacts on downgradient surface water are fatally flawed, and therefore
there is a high risk that the Permit has reasonable potential to cause or contribute to exceedances of
both groundwater and surface water standards and permit limits. DEQ must both re-evaluate the
validity of its findings of nonsignificance and propose a far more robust system of monitoring
capable of assuring no violations of standards will occur. Put another way, DEQ must provide an
explanation of why the proposed monitoring will provide data representative of pollutant discharges
and changing conditions. As proposed it appears the same five basic locations chosen for well
slug data are deemed automatically sufficient to provide representative data. Yet, as explained
in the expert reports, the heterogeneous nature of the receiving Delta Aquifer, the presence of
preferential pathways, and the lack of any assimilative capacity in downgradient surface
waters of Wiley Slough and Lower Ashley Creek for additional nutrient loading means DEQ
must reevaluate the adequacy of its proposed monitoring.
e. DEQ Has Already Identified Nutrient Discharges from Anthropogenic Sources
as Causing or Contributing to Violations of Water Quality Standards in the
Flathead-Stillwater Watershed, and Zero Assimilative Capacity Remains for
Additional Nutrient Loads from LCWSD's Permit
The proposed permit would contribute nutrient pollutant loads that, ultimately, would enter
Wiley's Slough and Lower Ashley Creek. These surface waters have remained impaired on the
state's impaired waters list for decades due to excessive nutrient loading and negative
exceedances, nuisance aquatic plant growth and dissolved oxygen parameter exceedances, and
possess TMDLs quantifying needed reductions in nutrient pollutant loading, which DEQ and
EPA have established as the primary pollutant of concern contributing to violations of standards.
See Flathead-Stillwater TMDL, DEQ 2014, Section 5.4.3.2, 5.4.4, 5.4.5. The TMDL source
assessments establishes large point sources (including treatment plant discharges like the one
proposed here), and septic systems, as respective sources causing and contributing to nutrient
impairment in surface waters downgradient from the proposed LCWSD Permit. See TMDL
Sections 5.5.3.7, 5.5.3.9.
The TMDL estimates there are 3,353 septic systems in the Flathead-Stillwater watershed
contributing to the Lower Ashley Creek impaired segment, and describes that load as 15% of the
existing TN impairment for Lower Ashley Creek. Septics are estimated to contribute 20% of the
TP load to Lower Ashley Creek's impairment. The TMDL requires TN reductions across sectors
from 67-97%, with a median average needed reduction per sector of 92%. In the aggregate, the
TMDL contemplates an existing TN load of 230.60 lbs/day, and requires a reduction of 91% to
20.20 avg lbs/day. Again in the aggregate, the TMDL contemplates an existing TP load of 4.41
lbs/day, and a 58% reductions to an allowable load of 1.84 avg. lbs/day. The TMDL also
specifically assumes that these reductions will implicitly address the dissolved oxygen standards
violations and DO impairments.
There is zero evidence showing these allocations have been satisfied. In fact, best available data
indicates that Lower Ashley Creek and other nutrient impaired waters of the Flathead Stillwater
TMDL Planning Area remain impaired, if not worse than found upon decision-making in 2014.
Thus, because the dramatic necessary reductions in nutrient pollutant loading have not
occurred in downgradient receiving surface waters with a TMDL and remain impaired,
and because here it is undisputed that nutrient pollutants will ultimately reach Wiley
Slough and Lower Ashley Creek, DEQ must provide an evidentiary basis for allowing
additional nutrient loading that would violate the assumptions and conditions of its
Flathead-Stillwater Nutrient TMDL documents.
This duty is particularly true given our experts' opinions, which greatly reduce the
confidence in DEQ's alleged non-signficance findings for the Permit. To be clear, the basic
thrust of our experts is that (a) the receiving aquifer was not adequately described in terms
of its characteristics, including its heterogeneous nature, and (b) the use of modeling
software to arrive at estimated nutrient pollutant fate and transport findings are fatally
flawed and likely incorrect, both because of flawed baseline analysis, flawed aquifer
characteristics, and flawed assumptions about nutrient pollutant assimilation, chemical
change, and rate of transport to downgradient surface water.
f. The Proposed Permit Does Not Satisfy WQA Requirements
The EA states that the department determined the project not significant based on
allegedly satisfying several categorical exemptions under DEQ’s rules. However, as
discussed herein those categorical exemptions are either unscientific, contrary to record
evidence, and/or not applicable to excuse the department from taking a hard look at water
resource impacts. Only through comprehensive consideration of pending proposals with site-
specific data can DEQ adequately evaluate different courses of action.
DEQ’s rules require consideration of cumulative impacts as necessary to evaluate whether the
agency must perform an EIS. Similarly, the MWQA’s implementing rules explicitly requires
consideration of cumulative impacts or synergistic effects before determining a proposed
discharge(s) nonsignificant. See ARM 17.30.715(2). A discharge, much less a series of
discharges, all at or below the 7.5 mg/L TN nonsignificance threshold could still become
significant by virtue of cumulative impacts or synergistic effects.
DEQ cannot avoid taking a hard look at cumulative impacts or synergistic effects of the project,
in all its phases, and considering existing nutrient pollution challenges in the same watershed.
Only considering mixing zone compliance and presumed denitrification ignores the statutory
command to assure no degradation of surface water, and segmenting a project into piecemeal
discharges escapes the otherwise mandatory and thorough vetting of new pollutant
discharges required by the MWQA’s Nondegradation Policy and discharge permitting
rules.
More specifically, and based on our expert reports, there is a glaring failure to support the
conclusory finding that nutrient pollutant discharges from the RIBs will be attenuated, retained
by the aquifer, or subject to ongoing denitrification. As detailed in the Hauer Report, the
receiving aquifer is both smaller than and will be overwhelmed by discharged wastewater
such that there is little dilution available to meaningfully reduce nutrient pollutant
concentrations. Similarly, the receiving aquifer has little to no demonstrated ability to
create conditions capable of denitrification, and sand is not demonstrated capable of
bonding to and retaining phosphorus in the same manner as organic substrate.
Taken together with the likelihood of preferential pathways within the receiving aquifer -
which could accelerate fate and transport to surface water - and the Meredith and
Donohue Reports opinions regarding the incomplete and conclusory characterization of the
aquifer, there exists significant uncertainty about the validity of DEQ's nonsignificance
findings. This is particularly true in light of the proximity to surface waters, the existing
impairment of Wiley Slough and Ashley Creek and the Flathead Lake, and the already elevated
nutrient concentrations in proximate ponds well above background levels. In sum, the draft
Permit fails to consider whether the discharges would cause degradation of surface water,
failed to consider potential cumulative impacts or synergistic effects, and failed to explain
how any addition of pollutants from LCWSD's discharge is allowable under the Flathead-
Stillwater TMDL.
As noted above, the fact that a discharge - here LCWSD's - would contribute any amount of a
pollutant to a water that is impaired for such pollutant is enough to create a reasonable potential
that the discharge would cause or contribute to violations of water quality standards. The draft
Permit fails to address, in detail, how it reconciles this disconnect. Moreover, to the extent the
Permit would take septic wastes from across Flathead County, there is no evidence that
those wastes would solely be from within the Flathead-Stillwater TMDL Planning Area and
thus incapable of any type of evidence-based credit in Load Allocation reduction.
Furthermore, the draft Permit fails to identify or discuss how concentrating septic wastes
treated to SBR-levels, but now concentrated and flowing to a heavily nutrient impaired
stream segment without reasonable assurance that such pollutants will not cause or
contribute to continued exceedances of standards, has any rational connection to the
assumptions underpinning the TMDL.
V. The Draft Environmental Analysis Violates MEPA
The Montana Environmental Policy Act requires DEQ to consider the direct, indirect and
cumulative impacts associated with a proposed action. We are particularly troubled by
DEQ's use of an abbreviated checklist EA. The EA gives short shrift to potential water quality
impacts, focusing largely on alleged compliance with ARM 17.30.715(1) mixing zone
concentrations, without any meaningful inquiry into direct or cumulative projects under its
MEPA rules, 17.4.601 et seq.
DEQ's EA fails to consider the totality of undisputed potential wastewater loads for which
the corollary proposed new wastewater treatment facility is designed: 900,000 gpd. In doing
so the agency failed to consider the proposed permit in relation to other, simultaneous
projects currently pending and known to the agency. There is no explanation as to why
DEQ has segmented its review of solely the discharge permit at-hand when it plainly has
knowledge of and pre-application or existing infrastructure applications from LCWSD for
the referenced new wastewater treatment facility. The levels of treatment from which the
sequencing batch reactor6 are capable are not discussed in terms of their adequacy to
assure protection of receiving water quality. Given an SBR facility has a limit to treatment
efficacy, and given such technology is decades dated and not representative of best
available treatment or capable of meeting applicable water quality standards for many
wastewater constituents, it is arbitrary for DEQ to exclude consideration of the planned
new treatment works from its evaluation of the discharge permit reliant on such treatment
works. DEQ also specifically failed to evaluate the discharge permit in light of whether it is
reasonable to anticipate a potentially significant impact on downgradient surface water given all
such waters remain degraded by nutrient pollution, impaired, and possess TMDLs on which no
demonstrable progress has been made and therefore no assimilative capacity exists for any new
nutrient pollutant loads from LCWSD.
The draft EA fails wholly to evaluate the uncertainty of a new municipal-scale wastewater
discharge into the shallow Delta Aquifer, less than a quarter mile from sensitive surface waters.
This includes completely omitting any identification or discussion of preferential pathways
known to exist in the Deltaic Flathead Aquifer. The EA also fails to consider how the Permit
represents a growth-inducing effect stimulating more development pressure, and therefore
increased pollutant loads and disposal, at the Permit site, and resulting probable impacts on state
waters. The EA wholly fails to identify how sanctioning a new municipal-scale pollution
discharge with sequencing batch reactor scale technology - which does not represent best
practicable technology and offers significantly less treatment than necessary to come even
vaguely close to assuring protection of high-quality water resources of downgradient
Flathead River or Lake, protection of their uses including habitat for bull trout. Indeed, in
addition to a lacking alternatives analysis the EA is wholly lacking in regards to evaluating
the Permit in context of the area's valuable ecological and social setting.
Further, the EA fails to examine how the Permit commits public resources to allowing new
population growth in the region despite widespread nutrient impairment of state waters, and
commits the LCWSD to a predetermined outcome of levels of pollution control technology being
imposed at the corollary new wastewater treatment facility. The decision of what type of
wastewater treatment facility is appropriate should, and must, be considered alongside the
discharge permit, not the least because of the generational economic opportunity to address
improved wastewater treatment in the north Flathead Valley.
The EA gives particular short shrift to the concept - or actual consideration - of cumulative
impacts. A cumulative impacts analysis must be more than perfunctory; it must provide a useful
analysis of the cumulative impacts of past, present, and future projects related by type and
location. Indeed, a cumulative impacts analysis must provide some quantified information,
because general statements about possible effects and some risk do no satisfy the hard look
absent a justification about why more definitive information could not be shown. The discharge
permit at hand is but one of several connected actions and phases of wastewater pollution
6 In wastewater treatment, a sequencing batch reactor (SBR) is a fill-and-draw type of wastewater treatment process.
A SBR can be used to treat both municipal and industrial wastewater. While some literature sources indicate the
SBR as a single tank, other literature sources report it to be as multiple tanks. The SBR system involves single or
multiple tanks depending on the scale of the operation and on the composition of the wastewater influent.
control, treatment, and disposal proposed by LCWSD and within DEQ's regulatory authority.
There also exists the licensure of Land Application Disposal, and the proposal for a new
wastewater treatment facility and septage receiving station. Therefore, at a minimum the EA is
deficient for its failure to consider impacts related to the totality of LCWSD's wastewater
facility upgrades, including how this permit and related infrastructure, in combination
with other sources of nutrient pollution related by location and type, could affect local
water resources. Because DEQ's proposed Permit has not provided the public with any analysis
of what other related pollution sources are being contemplated in the same region, the public is
unable to comment meaningfully on this factor and can only conclude DEQ has inadequately
examined the universe of cumulative impacts related to authorization of a new municipal
scale wastewater discharge permit in the Flathead-Stillwater watershed.
DEQ's failure to evaluative cumulative impacts becomes even more glaring in light of the failure
to adequately characterize the ecological baseline. As noted above, the draft permit materials fail
to provide sufficient baseline data to assess the impacts of the Permit. MEPA requires DEQ to
provide the data on which it bases its environmental analysis. Such analyses must occur before
the proposed action is approved, not afterward. Here, the draft permit fails to evaluate the
uncertainty of nutrient pollutants and emerging contaminants contained in wastewater discharges
and their likelihood to enter downgradient surface waters, how those pollutants could affect said
waters, and how those pollutants could in particular affect resident threatened or endangered
species known to inhabit surface waters such as the bull trout.
No portion of the draft Permit - let alone the EA - discusses the potential impacts of
disposing of septage from the Flathead and the corresponding threat that disposing of such
wastes creates in terms of concentrating emerging pollutants like pharmaceuticals and
PFAS/PFOAS nearby downgradient Ashley Creek, Flathead River, or Flathead Lake, or
nearby residents, including members of CBF and NSWA who live less than a 1/2 mi from
the proposed disposal site. Federal and state agencies, including DEQ, are aware about the
potentially significant ecological impacts of pharmaceutical compounds contained in wastewater;
attached to this comment letter are several examples of publications concerning pharmaceuticals
in the context of water quality and health concerns, including a presentation by DEQ and the
Montana Bureau of Mines and Geology. See Pharmaceutical Exhibits D-I.
Similarly, DEQ and federal authorities are well aware of the negative impacts associated with
PFAS/PFOAs compounds, and in fact DEQ has dedicated a website to these compounds,
developed a 2024 PFAS Action Plan Progress Report, a Montana PFAS Action Plan, and a PFAS
and Your Health Action Sheet. Further, EPA issued an advance notice of proposed rulemaking on
PFAS, and on April 10, 2024 issued the final National Drinking Water Regulation for six PFAS,
which now possess Maximum Contaminant Levels. PFAS compounds are toxic, and hazardous
to public health, are found in concentrated volumes in wastewater discharges, and thus deserve
special scrutiny in permitting decisions.
Here, DEQ has performed zero diligence regarding what the collection and disposal of tens
of thousands of individual septics could mean for the receiving groundwater or
downgradient surface water, including zero discussion of the appropriateness of the
corollary new, proposed wastewater treatment facility at LCWSD given the PFAS challenge
in wastewater. Attached to this comment are several resources regarding PFAS, including
EPAs Advance Notice of Rulemaking and general fact sheet for its final rule. See Exhibits J-
O for additional concerns with Pharmaceutical and Personal Care Product contamination.
DEQ's EA also fails to identify downgradient and proximate trust lands held by the CSKT,
potential impacts on those lands or CSKT's flood easement which extends to the proposed
discharge site, or discuss potential impacts on water quality that could affect fishing or
other reserved rights of the Tribe given they are downstream in Flathead Lake. If the
LCWSD's discharge places nutrient loads quicker and in more potent form than modeled in the
draft permit, there exists potential for severe water quality impacts including eutrophication,
dissolved oxygen violations, and toxic algal blooms among others, and given the highly mobile
nature of nutrient pollutants in aquatic environments and the flow of the Flathead River and
Lake, any such pollution occurrences could affect interests of the CSKT. Zero analysis is
performed on impacts to CSKT interests.
VI. Request for a Public Hearing
The undersigned request the Department hold a public hearing concerning the proposed LCWSD
groundwater discharge permit. The issues at stake and which will be brought to the Department’s
attention during this hearing include but are not limited to:
• Widespread County taxpayer and LCWSD ratepayer concern about the degradation
potential of the proposed new treatment works and groundwater discharges, including the
potential for lost economic opportunity to invest in better pollution control technology;
• The inadequate scientific evaluation of the receiving aquifer, including fatal flaws in
aquifer characterization;
• The reasonably foreseeable, negative impact new wastewater discharges can incite on
downgradient, hydrologically connected surface water such as Wiley’s Slough, Lower
Ashley Creek, the Flathead River and Flathead Lake;
• The Permit’s role in causing or contributing to continued aquatic impairment of
downgradient Ashley Creek and non-attainment of nutrient pollutant loads set forth under
the Flathead-Stillwater TMDL (2014);
• The contextual significance of authorizing a new municipal-scale wastewater discharge
permit in the Flathead, proximate to undisputedly connected and sensitive high-value
surface waters;
• The Permit’s segmentation from the directly-related issue of the proposal for a new
Wastewater Treatment Facility intended to treat LCWSD’s wastes for disposal through
the Permit;
• The inappropriate use of an Environmental Analysis as opposed to an Environmental
Impact Statement for LCWSD’s various water resource proposals, all of which fall under
DEQ’s purview
Additional Issues Attached
Please find a list of Additional Specific Issues and exhibits that we have identified and ask that
you consider and address as part of our public comment on this proposed groundwater discharge
permit, EA, Fact Sheet, and facility expansion attached.
Conclusion
Frankly, it is incongruent how DEQ can put in the same permit the two concepts that (1) nutrient
discharges are causing and contributing to the continued impairment of Ashley Creek and
Flathead Lake, and (2) then propose a new municipal scale wastewater discharge to groundwater,
using antiquated and weak treatment of an SBR facility, less than a half-mile from Ashley Creek
and less than a mile from the Lake. These disconnects become worse in light of our expert’s
reports documenting the conclusory and lacking scientific basis for assumed Delta Aquifer
characteristics, including deeply flawed assumptions regarding nutrient fate and transport and a
complete failure to identify or account for well-established preferential pathways in the aquifer.
Given DEQ's reference to the unique funding mechanism for the discharge permit (ARPA-
Federal American Recue Plan Act) and the time constraints on using it, and LCWSD’s related
proposed new wastewater treatment facility, it is apparent that DEQ, with its own barriers of
limited staff and time, and oversight, hopes to quickly approve this permit, with hopes and
prayers of successful implementation by LCWSD. (It should be noted that LCWSD is a separate
legal entity over which DEQ has very limited regulatory authority under a troubling provision of
Montana law.)
We hope that this letter and particularly the expert opinions supporting denial of this project and
permits for it as proposed7 will lead DEQ to deny this permit and the LCWSD expansion as
proposed. Approving a new municipal-scale wastewater discharges with woefully outdated
7 The consultants found (a) the receiving aquifer was not adequately described in terms of its characteristics,
including its heterogeneous nature, and (b) the use of modeling software to arrive at estimated nutrient pollutant fate
and transport findings are fatally flawed and likely incorrect, both because of flawed baseline analysis, flawed
aquifer characteristics, and flawed assumptions about nutrient pollutant assimilation, chemical change, and rate of
transport to downgradient surface water.
mechanical treatment, particularly when compared to the investments that the neighboring City
of Kalispell has undertaken should be dead on arrival.
The organizations, CBF and NSWA, propose an alternative. DEQ and other have long recognized
the growing water quality crisis in the Flathead. Now is the time for DEQ and others to come
together and provide leadership be sure that the next location of a once-in-a-generation
investment in new municipal-scale wastewater treatment for the Flathead Basin is a durable and
science-based solution, which uses best-available pollution control technology. Now is the time
also to think bigger and more boldly by jointly exploring the feasibility of adopting new and
exciting technology that is harnessing sewage and septic waste as a valuable energy source. One
thing is clear, and it seems there is consensus on it, is the fact that we are growing and clearly
need a better way to dispose of septic waste and the growing level of biosolids from both septic
tanks and sewage treatment plants in this rare and special place we are all so lucky to live. Let’s
use this opportunity. We are on board for working on a better solution, and we hope others will
step forward as well.
Mayre Flowers, Executive Director
Citizens for a Better Flathead
PO Box 2198, Kalispell, MT 59903
Jennifer Tipton, Board Chair
North Shore Water Alliance
PO Box 42, Somers, MT 59932