2000 Clean Water Ruling Disrupts Highway Projects

The failure of Gov. Marc Racicot’s administration, particularly the Department of Environmental Quality (DEQ), to comply with the 1972 federal Clean Water Act has resulted in further hardships for Montana’s environment and economy. Not only do Montana’s 14,000 miles of impaired or threatened water bodies continue to go untreated, now thousands of jobs associated with numerous highway projects have been jeopardized, quite unnecessarily.

In 1997 MEIC and four other groups sued the U.S. Environmental Protection Agency for having neglected its responsibility to ensure the timely cleanup of Montana’s compromised water bodies. In a recent decision, U.S. District Court Judge Donald Molloy reaffirmed his earlier ruling that DEQ must develop water quality plans to restore Montana’s rivers and streams to full beneficial uses no later than May 5, 2007, and that it must work from a 1996 list of 900 impaired water bodies, rather than a slimmed-down list created by DEQ, which is about half that size.

The first step in developing these plans is to designate the Total Maximum Daily Load (TMDL) of pollutants each river or stream can tolerate and still meet water quality standards. Once these figures are determined for each of the various pollutants in a given stream, the sources of pollution must then be identified, and a strategy developed for returning the stream to a healthy condition. Judge Molloy further specified that until the appropriate TMDLs are established for a particular “water quality limited segment,” no new or increased discharge permits may be granted for that water body.

In an overreaction to his ruling, the Montana Transportation Commission recently canceled $38.5 million in previously authorized highway construction projects that it claimed could no longer obtain the necessary stormwater discharge permits.

The decision was disturbing not only because of the significance of its impacts — literally thousands of jobs and millions of dollars of federal matching funds at stake — but also because of the process with which it was made. After awarding contracts for nine highway projects at a meeting in Baker, Montana, the Commission rescinded approval of eight of those projects the following day in a secret conference call held without public notice and without the opportunity for public comment. This clear violation of Montana’s open meetings law not only deprived the public of its constitutional rights, but also prevented the Commission from gathering relevant data and making a fully informed and balanced decision.

Unfortunately, it was not the first time that the Commission had disregarded the state’s constitutional right to participation and right to know. A 1996 study conducted by the Legislative Audit Division found four instances of improperly noticed or closed-door meetings that had been held by the Transportation Commission between March 1994 and April 1995.

Had the Commission followed proper procedures in evaluating the effect of Judge Molloy’s ruling on the highway projects, it might have realized that such a drastic action was not warranted. Rather than arbitrarily canceling all the projects, each project should have been evaluated to determine whether the potentially impacted water body was exceeding standards for the specific parameters (pollutants) that would be generated by construction activities.

In order to clear the way for a proper meeting allowing all interested parties the chance to participate, MEIC, Friends of the Wild Swan, and a coalition of five labor groups filed suit against the Commission on October 30th, asking that its rescission decision be declared void. MEIC remains committed to the principle that government can only serve the public as long as it operates in an open and democratic fashion. It is unfortunate that Montana’s workers and waters may both pay the price for executive branch negligence under the watch of Governor Racicot. (Racicot, by the way, was in Texas when the Commission acted.