A recently adopted Montana state law removing “numeric” nutrient water quality standards as a criteria has been challenged by the Upper Missouri Waterkeepers, an organization that has been involved in litigation with the Environmental Protection Agency (EPA) over the variances that were allowed under the numeric standards. The organization has now petitioned the EPA to declare the new state law in violation of the Clean Water Act.
The state of Montana, which was the first state in the nation to adopt numeric nutrient standards for water quality in 2015, made a 180 degree turn around when Senate Bill 358 was passed into law. The bill, sponsored by Senator John Esp (R-Big Timber), removed numeric nutrient standards as a criteria for enforcing point source pollution levels from public and private wastewater treatment discharge systems. Esp said it was because the numeric standards DEQ was using are too stringent for municipalities and water and sewer districts to comply with. As a result they have been forced to seek variances until they can come into compliance. But that, according to Esp and his supporters, is not technologically possible and may not ever be possible. Esp was supported in passing the legislation by the League of Cities and Towns, mining and gas interests as well as other private system operators.
With numerical standards revoked, the state is by default left with the “narrative” standards that are still in place. Numerical nutrient standards rely on actual measurements of the amount of nitrogen and phosphorous in the water, both of which can be harmful to the environment and to human health in excessive quantities. Numerical limits were set to ensure that nitrogen and phosphorous components do not reach harmful levels. Narrative standards, as traditionally applied, are generally based on observable impacts of nutrient pollution such as algal blooms, oxygen starved zones, fish kills, or loss of aquatic insects. Critics of the change point out that once these kinds of observable impacts show themselves, it is very difficult to reverse the nutrient overload and return to a healthy level in the system.
The Upper Missouri Waterkeepers have been in federal court since 2019, not challenging the states numeric standards, but challenging the variances to the rule that it claims are so sweeping and so long lasting that they render the standards useless. According to executive director of the group Guy Alsentzer, they got a partially favorable ruling in federal district court that the variances were unlawful but the issue is currently under appeal in Appellate Court.
Alsentzer called the legislature’s passage of SB 358 “nothing but an attempt by polluters to make an end run around the Clean Water Act.”
“Montana has great scientific studies proving on a numeric level what level of nutrients, nitrogen and phosphorous we can we allow into Montana’s waterways and still keep them healthy,” he said.
“What’s troubling about SB 358,” said Alsentzer, “is that, aside from its ignoring science and dramatically expanding exemptions for pollution to our streams and rivers, is the manner in which it blatantly disregards mandates of the Clean Water Act.” He said for the state to amend water quality standards requires EPA review and approval before they are binding as a matter of federal law.
Alsentzer said that by putting an immediate effective date on its enforcement, the state “was essentially thumbing its nose at EPA.” He said the Clean Water Act requires EPA approval of any changes to a water quality standard within 90 days of a state changing them.
“Here, the state of Montana acted in bad faith,” said Alsentzer. “It changed its standards with an immediately effective date and without EPA approval. Long story short, our legislature and governor are more focused on bottom lines and corporate profit margins and about making it easy for developers to continue to develop without looking at what’s necessary to protect our waterways from harm.” He said that under the law his group had no option but to formally petition the EPA to make a determination that SB 358, its components both alone and together are unlawful and violate the Clean Water Act. He said at the same time they petitioned the EPA to formally reinstate Montana’s numeric nutrient pollution criteria “and again make the rule of law encompass a science based understanding of what’s necessary to prevent nutrient pollution in our waterways.”
Since the Senate bill became law immediately upon signing, the state Department of Environmental Quality has until March 1, 2022 to establish new narrative assessment measures. The agency is collaborating with a “nutrient working group” composed of representatives from environmental groups, industry representatives and someone from the EPA to develop replacement standards. Any new standards will require EPA approval prior to adoption. According to Hannah Riedl of DEQ, the working group has met once already and will meet monthly to consider potential changes to the standards.
The state is also moving forward with what it calls a new “adaptive management system” as an alternative to the variances which are already under legal challenge. The new adaptive system will allow the agency to work directly with each discharger on a case by case basis to see if any problems can be mitigated.
Alsentzer said that all the evidence shows that this narrative approach has never worked, “and that’s the exact reason that EPA over the last two decades has told states that they need to adopt independent numeric science based criteria for protecting waterways from nutrients.” He said filing the petition under the Clean Water Act and the under the Administrative Procedures Act was the group’s only avenue of relief for addressing such bad faith by a state.
“If EPA doesn’t take action within 90 days then a suit may be filed in federal court to compel them,” he said. “We hope EPA is going to do the right thing. Science and robust record shows that, without a doubt, numeric criteria are the best technology and best available science to tell us exactly how we can best protect our water in Montana. Ignoring that criteria is not only arbitrary and capricious, but it is also 100% unnecessary and it’s going to sacrifice our world class rivers and all the different economies and jobs that it supports.”
A report issued by DEQ in 2020 showed that 35% of Montana’s river miles and 22% of its lake-acreage is considered impaired by nutrient pollution.
