Messin’ with MEPA 

New changes in 1971 law already causing problems

Despite claims to the contrary from Republican Gov. Judy Martz, recent legislative changes to the Montana Environmental Policy Act are already causing problems for agencies mandated to protect public safety and the state’s land, air and water.

The Republican-led 2001 Legislature significantly undermined the 1971 act, commonly known as MEPA, with several bills drafted by extractive industries and carried by some of the state’s leading anti-environment lawmakers. Martz, a far-right fundamentalist who has lauded “market solutions” as the key to solving some of the state’s most pressing problems, was key in getting the bills jammed through over the protests of conservation leaders, Democrats, and moderate members of her own party. One measure, House Bill 473, is prompting particularly acute regulatory heartburn because it stripped away the state’s ability to place conditions on environmental permits for timber sales, new mines, major subdivisions, and a host of other projects ranging from game farms to fishing access sites.

The bill, sponsored by House Majority Whip Cindy Younkin (R-Bozeman) and signed by Martz, says mitigation requirements cannot be attached to MEPA-mandated permits unless the conditions are already encompassed by other state laws. Prior to the new law, state regulators could require companies to comply with nearly any condition they felt was necessary to prevent resource degradation and protect the public—based on findings turned up by environmental assessments and related impact studies.

Martz and Younkin, who briefly surfaced this spring as a potential candidate against U.S. Sen. Max Baucus (D-Mont.), argued that the changes were needed to spur the state’s economy and prevent bureaucrats from instating environmental restrictions that go beyond legislative intent. But conservationists note that Montana’s public health and fish and wildlife laws have gaping holes when it comes to controlling developers. Under Younkin’s bill, they say, MEPA’s look-before-you-leap provisions can no longer be used automatically to fill those gaps. Project proponents now have the right to veto any mitigation requests that go beyond existing state statutes.

“The impacts are going to show up in the strangest places because MEPA has always been used as an umbrella,” explains Jeff Barber of the Helena-based Montana Environmental Information Center. “We can find all the adverse impacts we want, but it doesn’t matter anymore because we can’t do anything about it at the state level.”

Indeed, the Montana Department of Natural Resources and Conservation (DNRC) was sued this summer because the agency, citing HB 473, determined that a Hutterite colony on the Marias River has the right to divert irrigation water even if it means the river’s fish population will suffer from decreased flows and degraded water quality.

The case, involving the Sunny Brook Colony in northern Chouteau County, was filed after the Department of Fish, Wildlife and Parks (FWP) argued that the water-use permit shouldn’t be issued because not enough stream flow would be left to sustain the fishery. DNRC ignored those findings, saying longstanding state water law supersedes FWP’s environmental concerns, primarily because Montana has no specific fish-protection statute. Two conservation groups—Friends of the Wild Marias and Missouri River Citizens—filed suit, arguing that the decision defies the Montana Constitution’s guarantee of a clean and healthful environment.

“The only recourse will be in the courts, which is what [pro-industry legislators and their backers] were trying to avoid in the first place,” says environmental lobbyist Anne Hedges. “You can’t ignore the Constitution, and the Legislature likes to. They’re like a little kid. They squeeze their eyes shut and think it’s going away.”

Activists say another potential skirmish over HB 473 is looming in far eastern Montana, where rancher Pat Goffena wants to open a commercial bird-hunting venture on the outskirts of tiny Musselshell, population 60. Earlier this year, Goffena asked FWP for permission to use 1,280 acres of his land to raise ring-necked pheasants, quail, chukar and Hungarian partridge that would be released for customers to hunt.

However, a state environmental assessment says the proposal would trigger “potentially significant” impacts on wild bird populations and “presents significant safety issues to townspeople from gunfire.” The proposed shooting site is crisscrossed by two highways and bordered on one side by a county road, the agency notes in its report. A school bus stop also sits nearby.

But in a recent letter to Goffena, FWP officials only laid down conditions for protecting wild birds and made no mention of the public safety issues raised in their own review. That’s because the agency decided that specific gunfire mitigation could not be instated under MEPA because of HB 473, confirms Tim Feldner, the state’s game farm licensing coordinator.

“You can’t really condition a permit unless the applicant agrees” or the proposed condition is already authorized by state’s code book, Feldner notes. “We’re just hoping we can get [Goffena’s] cooperation and get some of these changes.”

Weakening of the law certainly doesn’t please neighbor Wayne Brillhart, whose land sits next to Goffena’s proposed hunting reserve.

“I think it’s a pretty stupid idea,” says Wayne Brillhart. “People who don’t know where they are in the shooting range won’t know if they’re close to the boundaries. I think it’s a train wreck waiting to happen. To me, it’s a liability-type thing.”

At a state Republican Party meeting in June, Martz praised Younkin for “streamlining” the law. She added that her preference would be to dismantle MEPA, rather than amend it any further.

“You did the right thing, girl,” Martz told Younkin before a cheering crowd of GOP supporters in Bozeman. “It’s too bad we can’t get rid of it.” But during a June meeting with leaders of the Montana Conservation Voters, a statewide advocacy group, Martz turned tail and denied that she wants the law scrapped—but only because she believes it’s politically difficult. Martz also told activists that she believes no harm has been created by Younkin’s bill.

“Common sense says you’ll do these things,” Martz says of environmental permit conditions. “Common sense has to go a long way to do what is right. What I’m looking for is balance in everything I do. No one can have everything.”

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