by Michael Howell
The Montana state legislature’s attempt to do away with the scientifically-based numeric nutrient standards that have protected Montana’s rivers and streams from nutrient overloading for almost a decade has hit a snag. One third of the river miles in the state have been determined to be impaired by nutrients such as nitrogen and phosphate. Nutrient overloading can lead to the formation of toxic algal blooms and deoxygenation of the water, compromising the aquatic ecosystem and killing fish.
Montana led the nation by adopting objective, numeric-based standards for nutrient impairment in 2014 and many states have since followed suit. In 2021, however, the legislature reversed course and passed Senate Bill 358 in an attempt to jettison those numeric standards and fall back on a form of “narrative” standards. Sponsor of the bill, Sen. John Esp of Big Timber, argued at the time that the numeric standards were too stringent, and that the technology required to meet the standards was too expensive and not yet available.
Tasked with developing a new set of narrative standards, the Montana Department of Environmental Quality (DEQ) established a Nutrient Work Group, including representatives of environmental organizations, municipalities, industries and the general public, and initiated a rule making process.
Following a long and contentious effort and the closure of the public comment period, DEQ published a draft set of rules on April 26, 2024. But the draft was met with strong objections from most members of the Nutrient Work Group itself, including the Upper Missouri Waterkeepers, the Montana Mining Association, the Montana Petroleum Association, the Treasure State Resources Association and the Montana League of Cities and Towns. While some objected that the new rules were designed based on purely economic considerations and not on the health of the ecosystems, others claimed that the new rules themselves would be too expensive to meet and were too difficult to interpret as well as being too vulnerable to litigation.
As a result, DEQ announced last week that it is putting the process on hold while it conducts further review of the comments.
“I said when we published the draft rules that we would continue listening and we did,” said DEQ Director Chris Dorrington. “In addition to receiving feedback from the Nutrient Work Group, DEQ has worked closely with the Legislature’s Water Policy Interim Committee to take a thoughtful approach to implementation of Senate Bill 358. The pause in rulemaking will allow DEQ more time to consider the substantive comments received and means that the proposed rule package will not move forward to adoption. I would like to thank Senator Esp, and the Water Policy Interim Committee for their thoughtful approach to hearing all sides of this complex Montana issue, and Chair Walsh for his leadership.”
“Montana’s waters are a precious resource and integral to our way of life and nutrient pollution is a complex issue for our state,” said DEQ Water Quality Division Administrator Lindsey Krywaruchka. “DEQ applied the best available Montana-based science in developing this rule package. The work group provided valuable perspectives about treatment costs and the need for flexibility. But it’s clear we need more time to carefully consider the feedback we’ve received regarding this complicated subject.”
According to the agency’s press release, “the goal of the process is to continue working toward the narrative standards and adaptive management option required by Senate Bill 358, in a manner that is at least as protective of water quality as the numeric standards previously approved by the U.S. Environmental Protection Agency.”
In the meantime DEQ is continuing to operate under the numeric standards previously approved by the EPA.