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Lawsuit: Columbia Falls subdivision threatens to pollute river

Daily Inter Lake | October 7, 2021 12:00 AM

Several groups are suing to stop a large subdivision from being developed just outside Columbia Falls, alleging the state Department of Environmental Quality didn't properly assess how dozens of new septic systems might contaminate the Flathead River.

The Benches development would include 48 single-family homes on a 55-acre property between U.S. 2 and Rogers Road, about 600 feet east of the river. The Columbia Falls City Council greenlighted the project in October 2019, stipulating that the DEQ must approve the water and septic systems.

Three groups — the Upper Flathead Neighborhood Association, Citizens for a Better Flathead and Water for Flathead's Future — filed their complaint last Thursday in Lewis and Clark County District Court, alleging the DEQ failed or refused to consider evidence that the planned septic systems threaten to pollute groundwater, the river and adjoining wetlands.

In a news release, the groups noted the Benches is "the first new significant housing development to the east of the city and near the Flathead River, with others likely to follow, also likely on additional septic systems."

In early 2021, the DEQ issued a certificate of subdivision approval as well as a "determination of nonsignificance" for the project, meaning it wouldn't have a significant effect on water quality. But when making that determination, the agency relied on the "faulty belief" that errant wastewater would travel away from the river via a gravel aquifer roughly 200 feet underground, the plaintiffs allege.

In a report commissioned by the plaintiffs, Willis Weight, a hydrogeologist at Carroll College in Helena, found groundwater travels north by northwest — directly toward the river — via a shallower aquifer that wasn't considered in the DEQ's analysis.

"DEQ did not independently determine the project's groundwater data, but rather relied on values provided by the applicant," the complaint states, adding that the agency "failed to provide any analysis of the project's proposed sewage treatment systems' potential impacts on surface water."

The project was originally proposed by Whitefish developer Jim McIntyre, but he sold the property to Siderius Construction after the Columbia Falls City Council approved the housing proposal in 2019. (The council rejected McIntyre's proposal to build 30 short-term rental cabins elsewhere on the site.)

The city's approval followed two public hearings in which neighbors voiced concerns about potential impacts to the environment and the wells they use for drinking water.

The lawsuit names only the DEQ, which the plaintiffs accuse of violating Montana's Water Quality Act. The city and the developers are not named as defendants. A DEQ spokeswoman said Tuesday the agency was still reviewing the complaint and generally doesn't comment on pending litigation.

"DEQ is doing a disservice to all Montanans and our waterways by failing to do a thorough job of reviewing new sprawling developments for proper water pollution controls and forcing citizens to hire experts to do the work we expect DEQ to do to protect our 'clean and healthful environment' that is guaranteed by our Montana Constitution," Shirley Folkwein, chairwoman of the Upper Flathead Neighborhood Association, said in a statement.

"Montanans have a fundamental right to participate in our agencies' decision-making," Folkwein said, "yet DEQ rejected our attempt to provide it with expert science that could inform its review of the projected septic waste and pollution controls needed to protect our wells and ground and surface water, including the Flathead River, from the cumulative impacts of poorly sited or designed septic systems."

The lawsuit was filed on the same day that Water for Flathead's Future won its latest legal victory in a separate case over a water bottling facility in the Creston area. Lewis Clark County District Judge Kathy Seeley voided a permit for the facility issued by the state Department of Natural Resources and Conservation, saying the agency failed to consider required data on water availability.

Assistant editor Chad Sokol may be reached at 406-758-4439 or