Little Prickly Pear Creek is pictured near Helena, Montana (Courtesy Flickr user kelly_b)
A Montana environmental organization is ratcheting up its effort to halt the repeal of numeric nutrient water quality standards for streams and rivers in the state, filing a notice this week that it intends to sue the U.S. Environmental Protection Agency over the federal government’s inaction on the changes.
The EPA has not met its statutory responsibility under the federal Clean Water Act to either formally approve or disapprove of revisions to state water quality standards within 60 days of the changes being formalized, the filing says. That clock began ticking on April 30, when legislation repealing the numeric nutrient criteria was signed by the governor, contends Guy Alsentzer, director of Upper Missouri Waterkeeper, which filed the notice of intent to sue.
“EPA cannot stand by and watch Montana implement water quality standards that violate federal clean water law and, ultimately, fail to protect Montana’s world-class waterways from nutrient pollution” Alsentzer said in a statement.
The EPA declined to comment on pending litigation. A spokesperson for the Montana Department of Environmental quality disputed Alsentzer’s assessment of the timeline and said Montana has yet to finalize changes for the EPA to evaluate.
In 2016, Montana became the first state to finalize adoption of numeric standards for concentrations of nutrients like nitrogen and phosphorous, something the EPA had been encouraging states to do for years. Nutrient loading can cause algal blooms, impairments to drinking water, fish kills and more. But regulated industries and other dischargers argued that the standards were too difficult to achieve with present technology, leading to a variance scheme that allowed permittees decades to meet the standards. Around 35 percent of the state’s river miles are considered “impaired” by nutrients, Montana reported in 2020.
In 2021, with litigation challenging the variance scheme in the background, the Legislature passed Senate Bill 358, doing away with these numeric standards entirely and directing the state to revert to narrative nutrient criteria instead. Under these new regulations, the priority would be the reduction of phosphorous, rather than both phosphorous and nitrogen; and the state Department of Environmental Quality would “evaluate the direct effects manifested in the river rather than pollutant concentrations at the end-of-pipe,” among other changes, an approach some experts and environmentalists say is too reactive and not supported by the science, and which Alsentzer says goes against the Clean Water Act.
The state, however, hasn’t actually finished developing the new criteria. Stakeholders on the nutrient work group — which includes both Alsentzer and representatives from the EPA, among others — have been at that task for months, but Montana has still yet to formally submit revised standards to the EPA. Waterkeeper’s legal action acknowledges that fact, but says the “purported” implementation process under the law is just distraction from the fact that the state formally revised its water quality standards when SB358, a bill with an immediate effective date, was signed. SB358 also says that the department will administer its discharge permitting program consistent with the bill until final rules are adopted, a provision that has already caused confusion among stakeholders about which law is currently in effect.
A spokesperson for the DEQ said the notice of intent to sue errs in presenting the enactment of SB358 as the beginning of the EPA’s timeline.
“DEQ continues to work closely with the EPA in the implementation of SB358,” said Moira Davin, a press officer with the department. “The NOI is calling SB358 (itself) a water quality standards change. DEQ has not submitted anything to EPA for their approval related to SB358 and EPA has not provided any timeline to DEQ or indicated their intent to act on the statutory change in SB358.”
The agency has at this point split rulemaking into two chunks. At first, the nutrient work group was to adopt a comprehensive rules package by the end of last year. But DEQ says more time is needed “to fully address the concerns of multiple parties.”
So the department adopted a single new rule to define and implement what SB358 calls an adaptive management program, an “incremental watershed approach for protecting and maintaining water quality” that will provide a framework for a second rule package that will fully flesh out the new standards. It neither adopts nor repeals a water quality standard, Davin said. The final rule will be adopted in September and then sent to the EPA for review, she added.
Waterkeeper’s filing says it will take the agency to court unless it acts within 60 days, by which time the first rule would be effective. The group in May filed a similar petition asking the EPA to make a determination that the proposed changes violated the Clean Water Act.
“Montana’s revised water quality standards reverse critical protections for designated uses under the CWA and are indefensible,” the notice filed January 11 reads. “There is no record or science-based findings accompanying SB 358 to support Montana’s revised water quality standards, to demonstrate compliance with the CWA’s direction to protect existing or designated uses, to justify repeal of numeric water quality criteria, to substitute less-protective narrative criteria or reliance on a new and unproven adaptive management program for nutrient pollution, or supporting the statutory adoption of new nonsignificance exemptions for nutrients.
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