MISSOULA — Development of a wastewater facility near Flathead Lake will continue, but so will a lawsuit that seeks to stop the release of sewage while the state does a more thorough environmental analysis.
Last week, Citizens for a Better Flathead expressed disappointment that their legal effort to suspend a wastewater discharge permit was rejected. But they’re determined to continue with their associated lawsuit against the Montana Department of Environmental Quality.
“DEQ’s refusal to evaluate best-available science demonstrating inappropriate levels of treatment and a terrible disposal location for massive volumes of new pollution near Flathead Lake is a disservice to citizens and taxpayers, and a real threat to the Flathead’s cherished water quality and its economy,” said Mayre Flowers, Executive Director of Citizens for a Better Flathead.
On May 28, Citizens for a Better Flathead and the Confederated Salish and Kootenai Tribes filed a complaint in Flathead County District Court alleging that DEQ issued a discharge permit for a new wastewater facility without properly analyzing how the nutrients in sewage — nitrogen and phosphorus - could seep through the ground to degrade nearby Ashley Creek and Flathead Lake. They also filed for an injunction to suspend the permit while the lawsuit proceeds.
On Oct. 17, Lake County district judge Danni Coffman denied their request for an injunction, saying she didn’t have sufficient information to decide whether Citizens for a Better Flathead would ultimately win based on the merits of the case, which is one of the criteria for granting an injunction. The DEQ hadn’t provided an administrative record related to its decision to grant the permit.
During the Oct. 14 injunction hearing, DEQ’s attorney told Coffman that the plaintiffs’ complaint was premature and that they would need to wait until they could show harm from pollution. But Citizens for a Better Flathead attorney Guy Alsentzer said his clients were forced to file earlier than they might have because the 2025 Montana Legislature, as part of House Bill 285, limited the amount of time within which plaintiffs can bring a challenge after an agency issues a document.
Twice during the Oct. 14 hearing, Coffman said she was unlikely to find irreparable harm occurred based on the record. In her ruling a few days later, Coffman also referred to a timeline the DEQ filed shortly before the injunction hearing that showed DEQ wouldn’t approve a final design plan for the wastewater plant until the third quarter of 2026 and that the project wouldn’t be completed until the end of 2029. That was a last-minute change to the timeline, but it indicated that the threat to water quality wasn’t imminent.
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However, Alsentzer said taxpayers’ dollars could be wasted on development in the meantime if he’s able to prove that DEQ failed to consider how much pollution the wastewater plant could contribute to nearby Ashley Creek and Flathead Lake.
“The purpose of an injunction is to hit pause to preserve the status quo,” Alsentzer said on Oct. 14. “We have the expenditure and an irretrievable commitment of tax dollars. We would be ‘damned if we do, damned if we don’t’ if we seek this injunction now vs. if we wait two months and let’s say the MEPA record is filed and then we seek an injunction relief petition. We’re going to be told, ‘No. Latches. You waited too long.’ The Legislature has said we have to do this now. And the irreparable harm is both the commitment of irretrievable resources and the idea of the constitutional right to know.”
DEQ’s attorneys had asked the judge to dismiss the case, but she didn’t do that. Instead, Coffman said in her order that the question of whether DEQ properly approved the wastewater permit still remains. So the case will move forward.
In the meantime, Citizens for a Better Flathead is now asking the Lakeside County Water and Sewer District to voluntarily suspend development of the facility. If the judge eventually finds in favor of Citizens for a Better Flathead, and if DEQ finds the proposed groundwater discharge is inappropriate at this site, around $58 million of federal, state, and ratepayer dollars would have been wasted.
In September 2023, Flathead County bought property on the banks of Wiley Slough, which feeds into Lower Ashley Creek, to build a treatment facility large enough to accept septage from across the county. The county also contracted with Lakeside County Water and Sewer District to run the facility and dispose of the wastewater. However, the district would need to obtain a wastewater discharge permit from DEQ before Flathead County would pay $23.5 million to build the facility.
In December 2024, DEQ published a draft permit that would allow Phase 1 of the new facility to discharge 200,000 gallons of wastewater per day into the groundwater. But the accompanying fact sheet said the aquifer was “hydrologically connected to surface waters.” So the wastewater would eventually surface, enter Ashley Creek and, ultimately, Flathead Lake, which is only a mile away.
DEQ said that wouldn’t be a problem because the wastewater would be cleaned of nutrients while underground. So DEQ said the discharges were nonsignificant, and therefore only a basic environmental assessment was needed.
Citizens for a Better Flathead has DEQ documents that contradict the “nonsignificant” finding when it comes to Ashley Creek, which is already impaired by nutrients. The group also objects to the way the facility is being developed in two phases, because that means DEQ will evaluate each phase independently instead of considering the cumulative effects. The second phase would expand the facility to increase the discharge rate to 900,000 gallons per day.
“We already have a case through the agency’s own evidence in its Total Maximum Daily Loads that we have waterways that will receive more pollution, pollution that will be emanated from the permit,” Alsentzer said on Oct. 14. “We have the very issue of: can the agency tasked with protecting our Constitutional right to a clean and healthful environment, without seeing the proverbial fish float dead in the river, do we have to wait for circumstances on the ground to become so burdensome that we start to see the entire lake’s ecosystem collapse? Is that what we have to wait for before the claim of degradation would be ripe?”
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.
