In October 2002, district court judge Thomas Honzel issued a ruling declaring the Department of Environmental Quality’s method of granting water quality discharge permits to concentrated animal feeding operations (CAFOs, or feedlots) to be invalid. The Montana Department of Environmental Quality, however, chose to continue with its permitting scheme. So, in October 2003, Judge Honzel reaffirmed his ruling by declaring the CAFO general discharge permit “not effective,” and ordering DEQ to prepare a programmatic environmental impact statement for its CAFO permitting program.

The ruling comes as a result of a lawsuit MEIC filed challenging the general permit for CAFOs and, more specifically, the authorization to discharge granted to Cattle Development Corporation (CDC) near Custer, MT, under the CAFO general permit. A general permit is used to pre-approve discharges from activities that are similar in nature and have similar discharges. Once a general permit is approved, a company or individual receives a letter of authorization from DEQ to operate under the permit’s conditions. Although there is an environmental review and public comment is taken on the general permit, the individual letters of authorization afford no such public involvement opportunities.

MEIC filed the suit in conjunction with farmers and ranchers whose properties adjoin CDC’s feedlot. The neighbors believed that CDC was going to pollute nearby ground and surface water and deplete the local aquifers. With the help of MEIC, they asked DEQ to produce a site-specific environmental analysis of the CDC operation, hold a hearing, and take public comments. DEQ declined to do so, stating that the environmental review had already been done in connection with issuing the general permit. MEIC then filed the lawsuit, the result of which was the October 2002 ruling.

Even though Judge Honzel clearly indicated that the general permit was illegal, DEQ chose to continue granting authorizations under its provisions. This year’s ruling says even more clearly that the general permit was implemented illegally. Honzel wrote: “…the general permit environmental assessment is not effective, which means that the general permit is not effective. Thus, until a programmatic EIS is prepared, DEQ cannot rely on the general permit to authorize CAFOs.”

MEIC hopes that the outcome of this ruling will be that DEQ will now do what it should have done ages ago: examine each feedlot and assess its impacts individually before granting it a water quality discharge permit.

Judge Honzel ordered CDC’s authorization to discharge suspended. But in newspaper articles, Tom Reid, head of DEQ’s water permit section, said about the ruling: “This isn’t shutting anybody down.” Reid continued by characterizing discharge permits as “a backup” that industry uses to “protect them from getting a fine for breaking State water quality laws.”

This attitude from the agency charged with protecting Montana’s environment is shocking. Montana’s water quality laws are designed to anticipate and prevent pollution from occurring. They are not meant to protect polluters from being fined if they break the law.  Logically, Judge Honzel’s ruling means that feedlots in Montana are operating without permits and could, potentially, be shut down. Rather than resort to such drastic measures, DEQ ought to comply with the ruling and use Montana’s water quality laws as they are intended: by analyzing and permitting feedlots on a site-specific basis. If DEQ continues to ignore Judge Honzel’s ruling, and does as it sees fit, further legal action may be necessary.

IN THE NEWS

• JUDGE RESTRICTS PERMITS FOR FEEDLOTS (October 10, 2003)
• DEQ approval of feedlots fails judicial test (10/26/02)