The Environmental Protection Agency (EPA) told the Montana Department of Environmental Quality (DEQ) by letter on May 10 that the
agency has determined that the law passed by the Legislature revising Montana’s water law (Senate Bill 358) by removing all numerical criteria does not meet the legal requirements under the Clean Water Act because it is insufficient to protect the water quality.
The Clean Water Act requires states to submit new or revised Water Quality Standards to EPA for review. EPA is required to review and approve, or disapprove, the submitted standards. But in this case, Montana did not submit SB 358 to EPA for review.
“Although the statutory changes took effect under state law on April 30, 2021, the new and revised WQS are not effective for Clean Water Act (CWA) purposes, including for implementation in the National Pollutant Discharge Elimination System (NPDES) permitting program, absent EPA’s approval,” wrote EPA Director of the Water Division, Darcy O’conner. “The EPA is disapproving of the removal of numeric nutrient criteria (NNC) from the law and solely relying on a general description based on narrative criteria. At issue in this action are water quality criteria for nutrients (i.e., nitrogen and phosphorus) and antidegradation requirements for high quality waters. The EPA makes it clear that the new rules cannot be used
for permitting purposes of the Clean Water Act. This would affect Montana municipalities which are required to obtain these permits before releasing treated wastewater sewage into the state’s waters.
“The state’s permitting record over the past two years demonstrates that the implementation of the narrative criteria alone does not protect the designated use, as required by law. Additionally, the narrative criteria alone, as informed by the record supporting the NNC, does not contain sufficient parameters or constituents to protect the designated use consistent with law,” they wrote.
Applying a similar rationale, EPA is disapproving other changes because these sections revise the desired condition for the applicable waterbodies by mandating removal of any reference in Montana’s regulations to the NNC by the Board and MDEQ without ensuring that the remaining criteria contain sufficient parameters or constituents to protect the designated use consistent with the law. This deficiency is documented in the state’s permitting record over the past two years.
EPA is also disapproving Montana’s new non-degradation provision in Section 7 because it too is inconsistent with the law.
As a federal agency charged with administering the Clean Water Act, the EPA’s authority supersedes DEQ’s. The EPA’s action effectively puts numeric nutrient standards back into play, for the time being.
The reversal will affect DEQ’s process for issuing permits to sewage treatment plants and other waterway dischargers such as mining companies and oil refineries.
DEQ Public Relations Specialist Moira Davin said, “DEQ has been working closely with the EPA throughout this entire process and all final Montana pollutant discharge elimination system (MPDES) permits are provided to EPA for their review. We are still reviewing what it means for the state’s implementation of nutrient water quality standards.”
Davin said a better understanding of how to respond to the notification may emerge following a meeting of the agency’s Nutrient Working Group on Tuesday, May 17. The Nutrient Working Group is an advisory council composed of representatives from local and federal government, conservation nonprofits, and oil and gas, mining and wood products industries that has been meeting for months working on a set of replacement for the current nutrient standards based on narrative nutrient criteria alone.
The Montana League of Cities and Towns, which has been participating in the advisory group, has been advocating for an “adaptive management plan” based on watershed planning and permitting along with a cost-benefit analysis to support cost effective water improvement projects.
Upper Missouri Waterkeepers, a non-profit water conservation organization, filed a lawsuit in March aiming to force the EPA to approve or disapprove the revised standards. Upper Missouri Waterkeeper Executive Director Guy Alsentzer said in response to EPA’s letter, “The State of Montana and special interests were rightfully rebuffed by the EPA for failing to use best available science and adhere to the law. Waterkeepers warned Gov. Gianforte and the DEQ that rolling back clean water protections was contrary to federal clean water law and science based standards, and an egregious disservice to Montanans and our world-class waterways,” said Alsentzer.