FAQs
Does MPH have authority to create regulations?
State law requires each local Board of Health to adopt rules that govern wastewater disposal (see 50-2-116 and 50-2-130, Montana Code Annotated). In Missoula County, those rules are in Regulation 1 of the Health Code. In 2015, MPH staff proposed a regulation to create the Seeley Lake SMA. The proposed rule appropriately went through a public process and was adopted by the Health Board. Before the board created the SMA, staff used a policy for septic permitting in the area to comply with Section 5(A)(1), which prohibits the installation or increased use of septic systems that will contaminate state waters or potential drinking water supplies.
Do you review septic permits on a case-by-case basis?
Staff review each application on a case-by-case basis. That is true of every permit, not just in Seeley Lake. In the SMA, some of the factors staff evaluate and account for include whether the nitrate source existed within the SMA prior to the proposed project (in other words, is the resulting nitrate already accounted for in the background nitrate levels?), the magnitude of the proposed increased use (in gallons per day, using regulatory estimated flow rates), whether the proposed project will reduce the nitrate inputs from an existing home or business, underlying subdivision approvals or limitations, etc.
Staff understand why consultants and residents might feel like they are not looking at their projects on a case-by-cases basis. In the past, staff looked closely at the specific location of the proposed system, and then estimated the new nitrate contribution impact on the nearest of the three available data points. Though staff strongly suspected that nitrate was high throughout the SMA, they issued permits based on the sample results available at the time.
Considering new data, it is no longer important to look specifically at the location of the proposal within the SMA. Nitrates are high, and commonly above 5 mg/L, in most of the wells. The only readings that are within what are considered normal limits (around 1 mg/L) are at locations in the SMA on the east/northeast of the boundary. The concentrations in those areas of the SMA are normal, because there are few upgradient septic systems. However, allowing a new or increased source of nitrates on the eastern/northeastern edges of the SMA will still impact the downgradient wells, as it adds additional nitrate to the system. Staff have determined that any new development in the SMA, regardless of location, has the potential to cause and/or contribute to a violation of a state water quality standards.
Why do these rules seem inconsistent?
Environmental health specialists review every permit application within a complex framework of applicable state laws, state agency rules, minimum statewide design standards, property-specific subdivision/sanitation approval records, the local Health Code and the best available information. Staff often must figure out how a particular rule applies within a specific and complicated set of circumstances. Because it can be complicated, staff check in often with other teammates and their supervisor and meet weekly. At times, to make sure they apply the rules consistently, it makes sense to capture those interpretations in written policies or protocols.
The SMA language adopted by the Board in 2015 is intentionally flexible. The Board acknowledged staff had to be able to review permits considering circumstances in that area, and considering new data that may be available in the years to come. This is a common approach to regulatory language. Most rules require some degree of interpretation within context and operationalizing to maintain efficient and consistent application. The current rule language not only allows staff to adapt and change; in permit review procedures, the rule requires staff to do so. The rule states, in part:
“The Department will evaluate septic permit applications on a case-by-case basis, using the best information available including, but not limited to, nitrate sample results and studies on groundwater flow direction.”
The permitting protocol has changed a couple of times since 2015. The real difference with the most recent change is that it clarifies what type of systems are even possible in the SMA for new or increased use. It makes clear that, given the circumstances and available data, MPH is not able to issue a permit for a conventional system (one that does not include nitrate reducing technology) to serve a new use, or an increased use, within the SMA boundary. We came to that conclusion after reviewing the nitrate data from new monitoring wells throughout the SMA. Several months later, we memorialized that decision in the permitting policy document that was distributed widely to our interested parties list and posted to our website.
I’ve heard that MPH started treating Seeley Lake with the SMA rules in 2013, two years before they were regulations. How is that legal?
The state water quality laws that prohibit MPH from issuing permits in areas of known contamination is reflected in the Health Code.
(A) Prohibited activities and exceptions.
(1) No person may install, modify, repair, replace, use or increase the use of an on-site wastewater treatment and disposal system that may:
(a) contaminate any actual or potential drinking water supply;
(d) violate any law or regulation governing water pollution or wastewater treatment and disposal in effect at the time of installation;
(e) pollute or contaminate state waters, in violation of 75-5-605, MCA;
(f) degrade state waters unless authorized pursuant to 75-5-303, MCA;
Environmental health specialists are required to adapt to new information and protect water quality in a defendable, reasonable way, even if the local Health Code rules did not exist. The reason MPH sought to add the SMA to the Health Code, and proposed such a regulation to the Health Board, was not to establish or grant authority to staff to review permits in a specific way. It was to increase transparency, to generally define limitations, to establish a geographical boundary and to help sanitarians by giving a starting point for permit application reviews.
Why don’t these rules go through more of a public process before being enacted?
There are constitutional rights for the MPH and the Health Board to consider, specifically with respect to environmental protection. Montanans have a constitutional right to a clean and healthful environment (Art. II, sec. 3, Mont. Const.), and the state and each person have an affirmative duty to maintain and improve a clean and healthful environment in Montana for present and future generations (Art. IX, sec. 1, Mont. Const.) The Montana Constitution is the most environmentally protective constitution among all the states, and it is unique in creating an obligation to enhance - not just refrain from degrading - the environment.
Whenever the Health Code is modified, MPH and the Health Board follow the public notice and public comment rules that are in the Health Code and elsewhere in state public participation and open meeting laws. Staff post proposed rules to our website, email interested parties list, place a legal advertisement in the newspaper, post the information as part of the Health Board, county commissioner and City Council meeting agendas, and now - though it was not around in 2015 - also post the rules and hearing date here on Missoula County Voice.
Staff have heard from residents in Seeley Lake that they felt they were not made aware of proposed Health Code rule changes in 2015. When staff propose updates to the Health Code in the future, they will reach out to that community in more specific ways.
The protocol, and its adherence to the current regulations, was reviewed by the County Attorney’s Office and discussed with the Health Board. While the Health Board has the authority to review and recommend changes to the Health Code, the Board does not have the authority to tell staff to disregard state laws. Local rules are not allowed to be less stringent than state laws, per MCA 50-2-130 and 50-2-116.
Why are the rules more stringent now on already approved subdivisions, like the Alpine Trails Subdivision?
The SMA was created because there was evidence of a nitrate contamination issue, not as a reaction to a particular subdivision proposal.
The department began requiring additional information about groundwater flow direction and dilution modeling in 2011 to comply with state law and the health code. The Alpine Trails subdivision was submitted to the department for review in 2014. For that particular project, staff required the applicant to provide reasonable evidence, including a dilution model and a site-specific groundwater gradient, to suggest that the nitrate generated within the boundaries of that subdivision would not cause the well at Kurt’s Polaris - the closest data point we had at the time - to exceed the nitrate standard. The Kurt’s Polaris well is between a quarter-mile and a half-mile away from the lots in the subdivision.
At the time staff approved Alpine Trails, they had very few data points, and the sewer project was moving forward. There is now another monitoring location (MW2) that is 800’ downgradient from the closest lots in Alpine Trials. The first two samples from MW2 show nitrate concentrations of 6.57 mg/L and 6.34 mg/L. Even if the SMA did not exist within Regulation 1 of the Health Code, those concentrations would prevent MPH from issuing a conventional septic permit.
If we’ve known about the nitrate problem since 2011, why has it taken us this long to address the issue?
MPH agrees it has an obligation to take positive action. Staff have been aware of the nitrate contamination for 13 years but did not implement even more restrictive policies or regulations for the first 10 years, because the community was in the process of designing, funding and constructing a phased-in, community-wide sewer project. That would have solved the issue without the need for MPH to implement more stringent wastewater treatment system rules. When the sewer project failed, MPH was fully engaged in the pandemic response, and it took several more years to re-build staff capacity and to direct adequate time to this issue. In the meantime, the Seeley Sewer District collected more data, which reframed the issue and led to the current protocol.
Are these new rules retaliatory to the residents of Seeley who voted down the sewer in the first place?
MPH and the Health Board supported the community sewer project because it would have solved the nitrate contamination issue. The new protocol is not retaliatory. It takes into consideration both the additional data and the fact that there is no other solution moving forward currently. It only addresses new and increased use, which are septic systems that add more nitrate into the Seeley Lake ground water system. In the absence of a community project to address the nitrate issue, MPH is obligated to minimize new development’s impact on the groundwater and propose rules to address existing sources. MPH acknowledges that a property-by-property, permit-by-permit approach is the least efficient, the slowest and the most expensive way to go about it. For that reason, MPH is engaging with the Sewer District and others in the community to find and support a more realistic and equitable solution.
Why can’t we just focus on fixing the old septic systems?
It is a common, but incorrect, assumption that old septic systems contribute proportionally more nitrate to the to the aquifer than new systems do. Nitrate loading from a new conventional septic system is roughly the same as the loading from an old system. The only way to significantly reduce the nitrate concentration in sewage discharge is to incorporate some sort of advanced treatment. There are several designs that can accomplish that reduction.
MPH acknowledges that placing higher treatment requirements on new use and increased use projects in the SMA but not requiring any changes to existing systems will never result in lower nitrate concentrations in the area.
Why can’t MPH provide funding to help mitigate these nitrate levels?
Though MPH does not necessarily have the capacity or staff expertise to pursue funding opportunities for this community, staff have done what is within their capabilities to explore funding opportunities. Staff applied for a study grant through the Montana Bureau of Mines and Geology but were unsuccessful. MPH is in the running to secure $221,000 from the Department of Environmental Quality and would use it to have a positive impact on the ground water in Seeley Lake. Staff have talked with the County grants department and connected with the Office of Emergency Management about potential Federal Emergency Management Agency funding opportunities.
To frame this conversation, it is helpful to know that even several thousand dollars will not go very far if the path forward is addressing this issue on a system-by-system basis. A conventional system installation is between roughly $12,000 and $20,000. A Level 2 system can cost up to $40,000. A recent SepticNet quote submitted to MPH as part of a subdivision project showed those systems can cost a homeowner around $60,000 to $80,000, depending on flow rates and site characteristics. The true solution will be a community-wide sewer system.