Little Prickly Pear Creek is pictured near Helena, Montana (Courtesy Flickr user kelly_b)
The state of Montana, spurred by a law passed this year, has begun to roll back elements of its pioneering water quality standards, even as federal regulators have questioned the science behind the changes, warned of loopholes and maintained that current metrics are in place until they confirm otherwise, documents obtained by the Daily Montanan show.
At issue is Senate Bill 358, a bill passed in the 2021 legislative session essentially repealing a water quality regulatory structure that’s been in place for the better part of a decade. That structure provided for strict but regionally dependent numeric nutrient standards that set limits on the total levels of nitrogen and phosphorous in a body of water — both elements that are key contributors to potentially harmful algal blooms and other ailments. Nutrients such as these impair 35 percent of river miles in the state.
Municipal and commercial dischargers supported the bill as a way of creating more attainable water quality standards. Permitees were unable to meet the numeric criteria without variances, they argued; a system of narrative criteria, which was on the books in the past, would allow for more flexibility. These criteria are based on descriptors of water quality and pollution, rather than precise measurements of nutrient load.
But the Environmental Protection Agency, which must approve discharge permits as well as changes to state water quality standards, has repeatedly emphasized in communications with the state and with stakeholders that it will not recognize the changes called for in Senate Bill 358 until it approves them.
“It’s really concerning to hear this disconnect between how DEQ and EPA are interpreting the status of (the numeric standards),” said Sarah Zuzulock, an environmental consultant who sits on the Montanna Nutrient Work Group, at the stakeholder panel this week.
Meanwhile, the Montana Department of Environmental Quality, acting under the direction of the Legislature, has attempted to put forth several draft wastewater permits that follow the narrative standards in SB358, not the existing numeric limits, only to pull them after an environmental group raised concerns and the EPA requested extended review of the permits, an uncommon move.
“EPA took the unprecedented step in my 10 years of birddogging [wastewater treatment] permits in Montana of staying DEQ final decision-making on permits and performing its own review,” said Guy Alsentzer, executive director of the Upper Missouri Waterkeeper, a staunch opponent of SB358.
These are permits for waterways — Prickly Pear Creek, for instance — that are already considered impaired by the state, Alsentzer said.
SB358 directs the Department of Environmental Quality to develop narrative nutrient standard rules by next March. The bill also has an immediate effective date, and tells the department to administer the discharge permitting program consistent with the intent of the act until final rules are adopted.
To dischargers and their representatives on the Nutrient Work Group, a panel formed to guide nutrient standards rulemaking more than ten years ago, the process has proven to be at times bewildering. To Alsentzer and other opponents, it’s evidence of administrative double-talk and a haphazard approach to implementing unsound water policy.
“There’s a huge issue right front in square of not only the workgroup but also the EPA,” Alsentzer said. “Has the approach DEQ is taking — does it pass muster? I would argue that no it doesn’t pass muster.”
The Environmental Protection Agency began urging states to adopt numeric nutrient standards to supplant narrative criteria that had been the de facto standard for decades in the late 1990s. Not every discharge in the water is a nutrient, but the EPA identified nitrogen and phosphorous pollution as an especially pressing issue, and put forth numeric standards as “a critical tool for protecting and restoring a waterbody’s designated uses.”
The state DEQ began developing numeric standards in 2000, but didn’t formally adopt them in rule until 2014. Leading up to and following 2014, the Legislature passed several bills setting the criteria (now documented in DEQ Circular 12A) and creating general variances that allow many dischargers and permitees between 17 and 20 years to meet base water quality standards (contained in DEQ Circular 12B). In essence, regulated industry and municipalities alike argued they couldn’t afford to meet the base numeric standards with current technology, hence the variance scheme.
SB358, sponsored by Sen. John Esp, R-Big Timber, effectively repeals Circulars 12A and 12B, reverting the state to narrative standards. Esp said in testimony supporting the bill that the numeric standards were too difficult to meet without variances.
The bill instructs DEQ to develop through rulemaking different response variables that indicate water health, and calls for the creation of an adaptive management program “which provides for an incremental watershed approach for protecting and maintaining water quality.”
The rules will still need approval from the EPA, and must be compliant with the Clean Water Act.
At a Nutrient Work Group meeting this week, the DEQ summarized the major changes under this program in the permitting process. A management plan, the department said, quoting the bill, shall prioritize phosphorous reduction instead of phosphorous and nitrogen, which is more costly. The response variables mean that DEQ “would evaluate the direct effects manifested in the river rather than pollutant concentrations at the end-of-pipe.”
And if a watershed doesn’t meet narrative nutrient standards, the plan would allow for a “holistic” approach that allows more time to meet goals.
Some members of the scientific community and critics of the bill have questioned the underlying logic, which they say prioritizes a reactive approach over a proactive one — by the time physical manifestations of impairment occur, the river is already polluted.
“It’s an interesting perspective, but it seems like at that point the cat’s already out of the bag,” said Ben Colman, an associate professor of aquatic ecosystem ecology at the University of Montana.
At first, even the DEQ was opposed to the bill, with DEQ Water Protection Bureau Chief Jon Kenning saying in his initial committee testimony back in February that it was an “unvetted, not well thought out attempt to repeal the nutrient standards.”
The department testified as an informational witness on later iterations of the proposal, and at this week’s work group meeting said it was entirely possible to have protective narrative standards if implemented correctly.
“DEQ has studied nutrients for many years and is using this science to develop the Adaptive Management Program,” a slide presented by the department read.
The department is still in the process of developing the new criteria. But in August, the EPA evaluated a series of draft response variables submitted by DEQ and had a series of fundamental concerns, according to a copy of the EPA’s comments obtained by the Daily Montanan.
“The existing documentation does not provide information on how proposed thresholds would ensure that water quality standards of downstream waters will be maintained and protected,” the EPA’s comments said in one instance. In another, the agency said the information provided did not demonstrate “a process for how proposed thresholds would be used to derive (total nitrogen) and (total phosphorous) criteria for the purposes of assessing waters.”
The bill also comes at something of an awkward time. In 2019, a district court ruled on a lawsuit from Upper Missouri Waterkeeper against the EPA for its approval of the variance scheme, finding that Circular 12B in part violated the Clean Water Act by not enforcing a finite timeline within which to meet the numeric standards. Another ruling consolidated that challenge with a separate suit from Waterkeeper, and stayed the court’s previous order until the EPA approves a new set of variance timelines. Now both cases face federal appeals.
In July, the DEQ, as directed by SB 358, put forth draft permit renewals for three different municipal wastewater treatment plants: one in Helena, one in Cut Bank and another in Manhattan. These permits, the EPA would later note, “did not provide any analysis using the numeric nutrient criteria.”
This, for example, is the case with the Helena permit, which in its fact sheet says it will continue average monthly limits for total nitrogen and phosphorous first established in 2012 “to comply with general prohibitions and narrative standards requiring state waters to be free from substances which will create conditions that produce undesirable aquatic life.”
Upper Missouri Waterkeeper protested, writing in comments to the DEQ that despite “the legal and practical reality that receiving waters (Prickly Pear Creek and downgradient Lake Helena) are impaired for several pollutants of concern … the Permit fails to adequately assess the degradation potential of nutrient discharges,” among other issues.
“For the reasons discussed below DEQ cannot lawfully renew the permit as-proposed, and we request that DEQ withdraw the Permit and conduct the requisite pollution control and degradation analyses, including incorporating applicable numeric nutrient criteria, before offering this discharge permit again for public comment and decisionmaking,” Alsentzer wrote to the department.
Later that month, the EPA requested an extra 60 days — totaling 90 — to review the permits.
And in August, though not yet directly commenting on the permits, the EPA also wrote to DEQ water quality administrator Amy Steinmetz to emphasize that the existing numeric standards still apply.
“Until revisions to MDEQ’s water quality standards regulations are approved by EPA … the water quality standards currently approved by EPA remain in place for all [Clean Water Act] purposes,” EPA Region 8 acting Water Division director Bert Garcia wrote to Steinmetz in August.
In September, the DEQ pulled the permits for review. In a letter from the department to the feds, DEQ Water Protection Bureau Chief Kenning acknowledged that “Montana’s current nutrient rulemaking may change the nitrogen and phosphorus limits of those permits.”
Moira Davin, a spokesperson for DEQ, confirmed to the Daily Montanan this week that the draft permits were issued for review “following the narrative nutrient standard per direction provided in SB358.
“As we’ve gone through the process of developing the implementation of the narrative nutrient standards, we recognized that what was in the three draft permits could potentially change so we decided to extend our review,” she added. “In the meantime, the current permits are still in effect, monitoring is still required, and existing permit limits must be met.”
In May, Waterkeeper filed a rulemaking petition with the EPA asking it to effectively disapprove the changes called for in SB358, saying they usurped EPA’s authority in enforcing Clean Water Act standards and jeopardized water quality. The agency has yet to act on the petition.
Spinning our wheels
Neither environmental advocates or other Nutrient Work Group stakeholders seem sure how regulators will bridge the gap between SB358 and the existing regime, something that’s become apparent in testy exchanges in the last several work group meetings.
At a meeting in September, for instance, several members said they had assumed the numeric standards were void thanks to a February 2020 action letter from the Trump-era EPA that said Montana’s revised general variance scheme didn’t meet the requirements of the 2019 district court order.
The letter also informed the state that, unprompted, the EPA was approving language the state had previously requested in 2015 but that the agency had never acted on: it was a provision, driven by the state Legislature, that would scrap the numeric nutrient criteria and the variance scheme — if the court or the EPA ruled any part of the program was invalid. And the EPA’s letter, which told the DEQ it was out of compliance but did not specify any needed changes, seemed to have exactly that effect.
But Upper Missouri Waterkeeper challenged the provision in court. The case was eventually consolidated with the variance challenge, and a district court stayed a previous order against the variance timeline until the DEQ creates and gets approval on a new one. Until that happens, the existing variance timelines are not vacated, as the court had previously ordered in 2019, and the numeric standards are still in effect.
On the September call, EPA reiterated that fact, vexing some members of the group.
“Honestly, I have to say I think this is all news to those of us here on the call,” wrote Kelly Lynch, with the Montana League of Cities and Towns, in the Zoom chat, according to screenshots shared with the Daily Montanan. “I have seen nothing from EPA or DEQ stating publicly their position that the numeric standards and general variances are still in place.”
At the work group meeting this week, DEQ said it will meet its obligations to the Clean Water Act and review permits on a case by case basis until EPA approves rules implementing the narrative standards.
“All permits with a timely and complete renewal application are administratively continued until we issue an updated permit,” said Davin. “All current discharge permits have been reviewed to ensure dischargers have an effective treatment for nutrients according to past regulations that are protective of the impacted waterbodies. Their permits remain in effect as we work with the nutrient work group and EPA on new nutrient regulations.”
On the call, the department further insisted it would not be ignoring existing information it has on the health of a river. Narrative standards, it said, are not new or unique to Montana.
Even so, Alsentzer said there’s no better approach than the numeric criteria for ensuring river health — dischargers can meet the standards if they’re willing to make the investment, he added. DEQ, meanwhile, says it can keep standards high, but at the same time is implementing a rollback of sound science, he contends.
“As the petition noted, part of the issue is that DEQ is trying to have its cake and eat it too,” he told the Daily Montanan.
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