ELR Citation: ELR 21337
No(s). 88-517 (Mont. Feb 1, 1990)

The court holds that the Board of Health and Environmental Sciences erred in amending the §401 Federal Water Pollution Control Act (FWPCA) certification granted to the Milk River Irrigation Districts and the city of Gillette, Wyoming, by the State Department of Health and Environmental Services. Milk River Irrigation Districts and the city of Gillette applied for certification that their proposed hydroelectric projects complied with Montana's water quality statutes and regulations. After the State Department of Health and Environmental Sciences granted the certification, the Board of Health and Environmental Sciences amended the certification. The court holds that the State Department of Health and Environmental Sciences must conduct the FWPCA §401 certification process to ensure that state water quality statutes are not violated by proposed hydroelectric projects. The court holds that no evidence supports the Board's conclusion that the amendment to the certification satisfies applicable water quality standards, the nondegradation requirements of the Water Quality Act, and the public policy of the state of Montana. The court next denies a motion to dismiss the proceedings as moot, since the certification has no effect on the eventual action fo the Federal Energy Regulatory Commission. Finally, the court refuses to adopt rules relating to the water certification process, since the petition was for review of an administrative action, not the issuance of a writ of mandate.

Counsel for Respondents/Appellants
Matthew W. Knierim
Gallagher, Archambeault & Knierim
P.O. Box 512, Glasgow MT 59320
(406) 228-9331

Douglas E. Davidson
Berlack, Israels & Lieberman
1155 Ave. of the Americas, New York NY 10036
(212) 704-0100

Roger Tippy
Tippy & McCue
P.O. Box 543, Helena MT 59624
(406) 442-4448

Counsel for Petitioner/Respondent
Donald R. Marble
P.O. Box 649, Chester MT 59522
(406) 759-5104