Upper Missouri Waterkeeper, an environmental nonprofit filed suit against U.S. Environmental Protection Agency Thursday regarding its handling of a Montana law allowing for loosering of nutrient pollution regulations in state waterways.
Senate Bill 358, a bill passed by the 2021 Montana Legislature, directs the Montana Department of Environmental Quality (MTDEQ) to repeal the numeric water quality standards that regulate nutrients like nitrogen or phosphorus and convenes a workgroup to create replacement standards based on narrative criteria. According to Moira Davin, DEQ spokesperson, the nutrient group produced a preliminary set to replace the rules earlier in the year. It is expected to release its final proposal in October.
The measure was signed into law by Gov. Greg Gianforte signed the measure into law in April. He argued that treating wastewater at the levels required by numeric standards is prohibitive. During meetings with Montana legislators last year, they stated that better wastewater treatment technology was not available when DEQ adopted numeric water quality standard in 2014.
Upper Missouri Waterkeeper argues the numeric water quality standards are exactly the type of science-based, enforceable nutrient regulations that the EPA has been urging state to adopt for over two decades. According to the environmental group, Montana is leading the nation in water quality protections. They claim that nutrient pollution that feeds noxious algae blooms and suckers oxygen from aquatic ecosystems will cause waterways to become degraded. It also states that although the technology to treat water according to the state’s numeric standards is expensive, it is available and that wastewater plants should be working towards meeting those standards.
The state environmental agency DEQ oversees the issuance of wastewater plant permits to Montana cities and towns. The federal environmental agency EPA is the ultimate authority for water quality standards across the country. It is charged with ensuring state agencies, such as DEQ, comply with federal Clean Water Act regulations.
A 2020 report revealed that 35% of Montana’s river miles are in Montana and 22% of Montana’s lake. DEQ is a nutrient pollution assessment that determines if acreage has been reduced. Can kill fish and cause elevated toxins and bacterial proliferation that can be harmful to human healthIn severe cases
Upper Missouri Waterkeeper is suing EPA to clarify whether it should have approved or disapproved changes to Montana’s water quality standards. Waterkeeper states that the Clean Water Act demands that EPA approve or halt the implementation of new state regulations, such as SB358, within 90 days. If the EPA disapproves state changes to water quality rules in water quality, the Clean Water Act requires that the EPA prepare a proposal for alternative water quality standards within 90 days. With the expectation of a final regulation being promulgated no later than 90 calendar days.
The environmental group claims that almost a year after Gianforte signed SB358, the EPA has failed even to take the initial step of determining if the measure is compatible with federal water quality standards. It is now asking the United States District Court of Great Falls to order the agency to comply with federal water quality standards. Approve or decline immediately Montana’s revised water-quality standards
The Clean Water Act prohibits states from removing science-based standards to protect waterways health. Instead, they can use unproven and ineffective programs to control pollution that leave polluters responsible for their fair share of protecting water quality. Guy Alsentzer, Upper Missouri Waterkeeper Executive Director, stated in a release. Ignoring the best available science and creating new exempt schemes from pollution control is wrong and illegal. It is the EPA’s duty to ensure that our state is adequately protecting our clean waters resources.
Waterkeeper claims that the narrative standards are in effect and points out DEQs actions regarding a Water treatment permit for City of Helena as evidence. According to the ReportedAlthough the agency has paused reviewing an application, The new narrative standards were used by the city to submit the city’s submission last summerHelena can continue to discharge nutrients even though there are no current effective numeric nutrient standards.
The Clean Water Act states cannot lawfully repeal science-based standards to protect waterways health. Montana has done this and presented unproven and ineffective programs to control pollution.
Upper Missouri Waterkeeper Executive Director Guy Alsentzer
Waterkeeper claimed that correspondence between DEQ (EPA) and EPA was disclosed in the filing. Specifically, EPA sent a August letter to DEQ expressing concern about the shift to non numeric criteria by Waterkeeper and offering suggestions for how narrative criteria can limit nutrient polluting.
John Esp (R-Big Timber), sponsor of SB 258 said this week that he was disappointed that the matter is currently subject to litigation. He also stated that it could mean that hundreds of thousands of Montanans could have higher water and sewer bills to pay for more expensive treatment technology.
He said it had to be affordable. We can’t afford to keep adding millions more dollars. [for]Cities are not allowed to follow regulations that are impossible to achieve at the outset.
He also stated that he believes the lawsuit is premature.
We haven’t even written the rules to implement 358. It is disappointing that Waterkeeper chose to go to court rather than sitting down and working with the rest of us.
Upper Missouri Waterkeeper is included in DEQs Nutrient Work GroupThis includes representation from municipalities and the EPA, Montana Department of Natural Resources and Conservation, and industry groups such as the Montana Stockgrowers Association and the Montana Wood Products Association.
We haven’t even completed the rules for implementing 358. So it is kind of disappointing that Waterkeeper decides to go to trial instead of sitting down around the table.
John Esp, R -Big Timber, sponsor of Senate Bill 358
According to the environmental group, the EPA is not fulfilling its federal backstop role under the Clean Water Act. Instead, it is allowing Montana to ignore federal law. This is because Montana is attempting to undermine the agency’s two-decade-old push to move states to numeric water quality standards.
In an interview, Alsentzer stated that we were referring to a state law that is clearly against this and is based on improper considerations, political opinions, and economics. He said that EPA must do its job and say that if you don’t follow the rules, you aren’t using science and you are not allowed to do so.
Montana Free Press was sent an email by Moira Davy, spokesperson for DEQ. She stated that the agency is still working with the Nutrient Work Group, Upper Missouri Waterkeeper being a member, and expects that the group will issue its final package of rules in October.
A spokesperson for EPA stated that the agency does not comment about pending litigation. The agency has until May 31st to respond to the lawsuit in Court.
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