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Clark Fork Coalition, Earthworks v. Department of Environmental Quality

October 29, 2012

CLARK FORK COALITION, EARTHWORKS, TROUT UNLIMITED, AND ROCK CREEK ALLIANCE, PLAINTIFFS AND APPELLEES,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY, REVETT SILVER COMPANY, AND RC RESOURCES, INC., DEFENDANTS AND APPELLANTS.



APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV 2008-518 Honorable Kathy Seeley, Presiding Judge

The opinion of the court was delivered by: Michael E Wheat

Submitted on Briefs: July 25, 2012

Decided: October 29, 2012

Filed:

Clerk

Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Revett Silver Company and RC Resources, Inc., (collectively "Revett") appeal from an order issued by the First Judicial District Court, Lewis and Clark County, granting summary judgment in favor of the Clark Fork Coalition, Earthworks, Trout Unlimited and Rock Creek Alliance (collectively "Plaintiffs"). We affirm.

BACKGROUND

1. Legal Background

¶2 The Montana Water Quality Act makes it unlawful to cause pollution of any state waters from a point source without a valid Montana Pollutant Discharge Elimination System (MPDES) permit. Section 75-5-605(2)(c), MCA. Under the MPDES program the Department of Environmental Quality (DEQ) may issue permits for storm water discharges associated with construction activity. Admin. R. M. 17.30.1105 (2008). Storm water discharge associated with construction activity is a discharge of storm water runoff, snow melt runoff, or surface runoff and drainage into state waters as a result of construction activities including clearing, grading, and excavation that result in the disturbance of an acre or more of total land area. Admin. R. M. 17.30.1102(27), (28) (2008).

¶3 Any person who discharges or proposes to discharge storm water associated with construction activity must obtain either an individual permit or a general permit. Admin. R. M. 17.30.1105(1)(a); See also Admin. R. M. 17.30.1341(1)(j) (2008). In order to operate under an individual permit, a person must submit a detailed application, including analysis of the proposed discharge and site-specific controls to ensure the discharge will not violate water quality standards. Admin. R. M. 17.30.1322 (2008). Whereas to operate under a general permit for storm water discharge associated with a construction activity, a person must only submit a notice of intent together with a pollution control plan. Admin. R. M. 17.30.1115 (2008). In place of the detailed site-specific controls provided by an individual permit, a general permit requires only that a storm water discharger follow standard best management practices (BMPs) that DEQ has found generally sufficient to meet water quality standards across the state. Admin. R. M. 17.30.1115.

¶4 However, DEQ may not issue a general permit if the "point source will be located in an area of unique ecological or recreational significance." Admin. R. M. 17.30.1341(4)(e). The determination of whether an area is of unique ecological or recreational significance is based upon considerations of Montana stream classifications, impacts on fishery resources, local conditions at proposed discharge sites, and designations of wilderness areas or of wild and scenic rivers. Admin. R. M. 17.30.1341(4)(e).

2. Factual and Procedural Background

¶5 The Rock Creek Mine was initially proposed in the late 1980s with the goal of extracting copper and silver from the Cabinet Mountains. After the mine was initially proposed, various state and federal agencies spent more than a decade examining the potential impacts that the mine would have on the surrounding environment, including Rock Creek, the lower Clark Fork River, and the adjacent Cabinet Wilderness Area. This review culminated in September 2001 when DEQ and the U.S. Forest Service issued a final draft of a joint Environmental Impact Statement (EIS).

¶6 As described in the EIS, the mine would be developed in two phases. In the first phase, the exploration phase, Revett would drill an 18-foot wide, 1.25 mile long, evaluation adit, or mine shaft, to reach the ore body. The adit would generate substantial volumes of waste rock and ore. In the second phase, the production phase, Revett would drill parallel tunnels beginning at the confluence of the east and west forks of Rock Creek and extending some three miles beneath the Cabinet Mountains. Revett would then begin excavating the mine at a rate of approximately 10,000 tons of ore per day for an estimated 30 years.

¶7 The majority of the infrastructure associated with the mine will be constructed in the Rock Creek watershed. Rock Creek has two major branches, the East Fork and the West Fork, and is itself a tributary of the Clark Fork River near Noxon, Montana. The evaluation adit is located up the West Fork of Rock Creek, and the excavation tunnels are located at the confluence of the East and West Forks. Revett also plans to construct a milling facility at the confluence. Access to the milling site is provided by Forest Service road 150 and a combination of Forest Service roads 150 and 2741 provide access to the evaluation adit site. Forest Service road 150 parallels Rock Creek, and upstream from the confluence it parallels the West Fork of Rock Creek. Road 2741 branches off of Forest Service road 150 and extends nearly to the evaluation adit site. In order to use these roads, the EIS notes that Revett would need to improve them. This would include, among other things, road widening, installing turnouts, and corner widening.

¶8 Together, Rock Creek and its forks support an important population of bull trout, Salvelinus confluentus. Although previously abundant in western Montana, bull trout populations had dwindled and in 1998 the U.S. Fish and Wildlife Service (USFWS) listed them as threatened in the Columbia River Basin, which includes the Clark Fork River basin and Rock Creek. 63 Fed. Reg. 31647 (June 10, 1998); 50 C.F.R. § 17.11(h) (2008). After bull trout were listed as threatened, the Forest Service, as required by Section 7 of the Endangered Species Act (ESA), formally consulted with the USFWS about the mine's effect on bull trout. The USFWS then released a formal biological opinion (BiOp) regarding the mine's effects on bull trout in 2000. The USFWS revised and supplemented its findings in succeeding BiOps released in 2003, 2006 and 2007. In the 2007 supplement, the USFWS issued a no jeopardy finding and concluded that the development of the mine would not jeopardize the existence of bull trout in the Lower Clark Fork area. Significantly, the agency did not make an explicit finding as to jeopardy to the Rock Creek population of bull trout. Rock Creek Alliance v. United States Forest Serv., 703 F. Supp. 2d 1152, 1200 (D. Mont. 2010).

¶9 Rock Creek is one of only two tributaries, the other being Bull River, that support bull trout populations in the drainage of Cabinet Gorge Reservoir. According to the Montana Department of Fish, Wildlife and Parks (FWP), the Rock Creek and Bull River populations are the only two stocks in the surrounding area that have enough individuals to avoid a significant risk of extinction. Of these two, the Rock Creek stock is "considered unique (relative to Bull River) . . . [and it] is unlikely that bull trout would quickly recolonize Rock Creek if they became extirpated there." In the final EIS, DEQ and the Forest Service similarly concluded:

Rock Creek is an essential stock for conservation purposes. Not only is the species more abundant than elsewhere locally, but Rock Creek is also in better condition physically. Given that these data also show that Rock Creek is well within the range of conditions preferred by the species, while most other streams are not, we support the findings of the State of Montana that Rock Creek is one of the two watersheds where conservation efforts should focus on recovery of the migratory bull trout.

(Emphasis added.)

¶10 Despite the importance of Rock Creek, habitat conditions for bull trout in Rock Creek are already on the edge because of past sediment deposition in the creek. Excessive sediment destroys bull trout's preferred spawning habitat of low gradient reaches of mountain valley streams with clean gravel and cobbly substrate. Fine sediments clog the spaces between the gravel and cobble needed by incubating eggs and fry. If sediment is deposited into interstitial spaces during incubation, it impedes water movement through the gravel, lowers the levels of dissolved oxygen, and inhibits the removal of metabolic waste. Even if an embryo incubates and develops successfully, the emerging fry can be entombed by the sediment. Juvenile and adult bull trout are also adversely affected.

ΒΆ11 Due to the already at-risk status of Rock Creek, any additional sediment deposition could threaten its bull trout population. In the 2000 BiOp, the USFWS concluded that "[a]ny increase in sediment deposition is a risk to bull trout habitat productivity and survival rate." Similarly, FWP stated, "Additional impacts [from an increase in sediment] could result in irreversible consequences." These consequences are particularly troublesome because, as noted by the Forest Service and DEQ, "the loss of Rock Creek as a spawning and rearing tributary could push the ...


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