A new avenue: Groups look to protect Gallatin, Madison rivers through controversial ballot initiative | Environment
Deer Creek crosses over the exposed roots of an old tree trunk before entering the Gallatin River on May 5, 2022.
Several conservation groups are pushing to get an initiative on the statewide ballot in November that would apply strict pollution protections along the Gallatin and Madison rivers.
If it passes, Initiative 191 would designate the Gallatin River from the border of Yellowstone National Park to the confluence of Spanish Creek and the Madison River between Hebgen and Ennis lakes as “Outstanding Resource Waters.”
Cottonwood Environmental Law Center, the Gallatin Wildlife Association and Montana Rivers are the groups behind the initiative. The groups must collect more than 30,000 signatures from registered Montana voters by June 17 to get the initiative on the ballot.
They’re trying to get signatures both in person and online. John Meyer, executive director of Cottonwood Environmental Law Center, is waiting for the Montana Supreme Court to decide whether online signatures are acceptable, and he’s also asked the court to extend the deadline for signatures. He declined to say how many signatures had been collected so far.
The Outstanding Resource Water title would provide more than 100 stream miles with the highest pollution protections afforded under state law. The Montana Department of Environmental Quality would be barred from issuing “point source” pollution permits that “result in any change in water quality.”
That includes temporary changes to water quality — a fact that has caused some to worry whether many restoration projects, routine road maintenance and other activities would be allowed to proceed.
Ballot initiative supporters believe I-191 is the last opportunity for people to permanently protect the Gallatin and Madison rivers from pollution as development ramps up in Big Sky and in southwest Montana as a whole.
Meanwhile, state lawmakers, some conservation groups and agriculture groups are already lined up in opposition. Opponents fear that, in practice, the initiative could adversely impact ongoing efforts to restore water quality and habitat along the two rivers. They favor a more collaborative approach to addressing pollution issues.
A semi-truck drives south on HIghway 287, alongside the Madison River on May 5, 2022.
Long-time Big Sky residents Kelsey Rice, Anna McEnroe and Radar (the dog) fish the Gallatin River on May 5, 2022.
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The story behind I-191 starts in the early 2000s, when a group called American Wildlands submitted a petition to the Montana Board of Environmental Review to make a rule to designate the Gallatin River as an Outstanding Resource Water, Meyer said.
The board accepted the group’s petition and directed the Montana Department of Environmental Quality to evaluate the impacts of a designation in an environmental impact statement.
DEQ issued a final environmental impact statement in 2007, and then the issue stalled for many years. Jon Kenning, the department’s water protection bureau chief, said the Board of Environmental Review ultimately did not take a vote on the petition.
Efforts to secure the ORW designation along the Gallatin River resurfaced in 2018, when Cottonwood Environmental Law Center and the Gallatin Wildlife Association filed a nearly identical petition with the Board of Environmental Review.
Ultimately, the board decided not to proceed with the request, Kenning said. The groups attempted to sue DEQ in state district court over the decision, and the court denied the lawsuit. The Montana Supreme Court is considering an appeal from the groups.
In the meantime, Cottonwood, Gallatin Wildlife Association and Montana Rivers have found a new avenue for securing an ORW designation along the Gallatin — and now the Madison. The groups want to let voters decide upon the issue.
The West Fork Gallatin River flows under Highway 191 before merging with the Gallatin River on May 4, 2022. Some opponents to Initiative 191 worry that it would interfere with routine road maintenance.
The Gallatin River flows for about 45 miles from Yellowstone National Park to its confluence with Spanish Creek, before it exits Gallatin Canyon. The river’s west fork and that tributary’s south and middle forks all flow through Big Sky, then connect with the main stem.
State regulators have listed all the tributaries as water quality impaired due to nitrogen and phosphorus loading. Under the right conditions, excess levels of the nutrients in streams can prime them for recurrent non-toxic, filamentous algal blooms.
Green algae coats rocks along the shore of the Gallatin River near Big Sky on Tuesday, Aug. 17, 2021.
The Gallatin River Task Force, a nonprofit that monitors water quality in the area, attributes the high nutrient levels to a variety of sources. Among them are poorly-maintained septic systems, land application of treated wastewater, fertilizers and pet waste.
Despite their efforts, Meyer believes that the pace of development in Big Sky ultimately isn’t sustainable, and an Outstanding Resource Water designation’s hard limits on “point source” pollution represents the most viable option for protecting water quality.
He decided to include about 55 miles of the Madison River in the proposed initiative because of his concern over development along Jack Creek at the northwest corner of Big Sky. The stream is a tributary of the Madison.
“We don’t have 20 years to protect the Gallatin and Madison rivers. They are under threat and attack by development right now,” he said. “As more and more people want to buy a slice of Big Sky, we need to figure out where to put all this new pollution.”
Pine trees grow inside a chain link fence surrounding the sewage and water holding ponds at the Big Sky County Water & Sewer District facility on Thursday, April 28, 2022, in Big Sky.
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Many people disagree with Meyer. They worry that in practice, an Outstanding Resource Water designation along the Gallatin and Madison rivers could actually degrade water quality.
State Sen. Pat Flowers, D-Belgrade, said he fears that setting hard limits on point source pollution could encourage more people to develop their own private septic systems instead of connecting to a centralized sewer system.
Under Montana law, point-source pollution comes from “discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or vessel.”
“Nonpoint source pollution” is harder to pinpoint. It can be attributed to factors like urban runoff, sediment from construction sites, excessive use of fertilizers and eroding stream banks.
Both forms of pollution are responsible for nutrients entering the Gallatin River, but it’s more difficult to regulate nonpoint source pollution.
“Septics are considered nonpoint sources that would not be governed by the Outstanding Resource Water limitations,” Flowers said. “People along the Gallatin — whether it’s in Big Sky or lower down by Spanish Creek — will still want to develop a lot and put a house on it.”
Private septic systems do not treat wastewater near to the level that centralized treatment does, and all along the Gallatin Canyon — an area where residents can’t yet connect to a centralized wastewater collection system — development plans are picking up.
Montana Trout Unlimited, Republican and Democratic legislators and industry leaders from a variety of Montana’s economic sectors, including agriculture, timber, mining, tourism and development, have spoken out against I-191.
In early April, a host of opponents told legislators on the Water Policy Interim Committee that as it’s written in the petition, an Outstanding Resource Water designation could actually hinder efforts to restore habitat and protect water quality.
Five Republicans and three Democrats on the legislative committee voted in favor of a motion to oppose the initiative. Rep. Robert Farris-Olsen, D-Helena, and Rep. Tom France, D-Missoula, voted against the motion.
Flowers said it’s unclear how far I-191’s limitations could reach, but some have suggested it could limit restoration work along secondary streams that feed the Gallatin and improvements on fishing access sites.
Typically, both activities involve some excavation work, which results in temporary impacts on water quality, he said. The petition prohibits the issuance of permits that result in any adverse change in water quality, “including only a temporary change.”
Nobody knows with certainty that the petition’s wording would hinder ongoing restoration work or site improvements, but many organizations are concerned, Flowers said.
State Sen. Walt Sales, R-Manhattan, said he’s worried that for those in agriculture, limits on “temporary” changes to water quality could prohibit water diversions that require permits, and it could restrict the ability of farmers and ranchers to irrigate and water livestock.
“Agricultural producers already live in a world of uncertainty due to weather, commodity prices, and regulations,” he said. “ I-191 is yet another unknown as to what it really means for the producers.”
Meyer said the stretch of the Gallatin River that runs through Yellowstone National Park is considered an Outstanding Resource Water, and people are allowed to fish and recreate there.
People need to “cut through the fear-mongering that is coming from the development community in Big Sky,” he said. Montana Trout Unlimited and other groups that are opposed to I-191 have not pointed to any restoration project that would be stopped, he added.
Jon Kenning, of DEQ, said that in national parks, temporary changes to water quality along Outstanding Resource Waters are allowed, and officials can issue permits for maintenance and upkeep.
If the word “temporary” were to be added to the language of the law, the department would have to figure out what can be allowed in the Gallatin River and its tributaries, he said.
Two anglers fish the Madison River west of Hebgen Lake and Yellowstone National Park on Thursday, May 5, 2022.
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Back in January, Montana Attorney General Austin Knudsen tossed out the proposed initiative on the basis that it was “legally deficient” under the provisions of the Montana Constitution.
Knudsen concluded that the initiative represented an unconstitutional taking of private property that violated Article II, Section 29 of the state constitution. Cottonwood, the Gallatin Wildlife Association and Montana Rivers appealed Knudsen’s decision to the Montana Supreme Court.
In an emailed response to the decision, a spokesperson for the attorney general’s office wrote that the state supreme court agreed with the substantive points of Knudsen’s legal review, including the point that the initiative was “an attempt to bypass the normal review process.”
DEQ Water Quality Division Administrator Amy Steinmetz said during the water policy meeting in April that staff are happy to seriously consider petitions seeking the designation, but they are concerned about attempts to circumvent processes outlined in state law.
The department’s methods for considering any Outstanding Resource Water designation are detailed and rigorous because waters with the designation receive an additional level of protection that limits certain activities, she said.
“It’s important to carefully weigh benefits and risks. State law requires that this be done through a combination of scientific analysis and public involvement,” she said.
Kenning said that even though the tributaries of the Gallatin and Madison rivers are not mentioned in the ballot initiative, I-191 could impact permits for any project along tributaries that may affect the main stem rivers.
Cars leaving Big Sky drive alongside the Gallatin River on Highway 191 on May 4, 2022.
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Had the environmental review process been followed according to typical procedures, the department would have analyzed the unintended consequences of the initiative in great detail, and the public would have been able to review that information, Kenning said.
Sales said the protection of water resources is a priority for all entities with interests along the Gallatin and Madison rivers, and he believes the best way to ensure that happens is for those entities to work together on solutions.
“That’s what we’ve been doing for years now. Agriculture wants clean water. Conservationists and anglers want clean water. The people who live in this affected area want clean water. Our interests are aligned,” he said.
“Montana has some of the strongest water quality laws in the country. We got there by working together,” he said. “We don’t need an outside group attempting to override the protections Montanans worked together to put in place.”
Flowers said he thinks the collaborative efforts of the Gallatin River Task Force, Gallatin Watershed Council and other entities in Big Sky will provide the best path forward to preserving water quality in the Gallatin River.
“I think if we’re going to achieve a long-term commitment to water quality in the Gallatin River, it’s going to take that kind of cooperation to make it happen,” he said.
To Meyer, the strategy of collaboration has led to the “algae-filled Gallatin River” of recent summers, and he believes an Outstanding Resource Water designation will end development in Big Sky.
“If we want to continue collaborating, we can continue the amount of pollution in the Gallatin River,” he said. “Our job is not to make everyone happy. Our job is to protect the Gallatin and Madison rivers.
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