Bad State Water Policy: Weak Montana River Pollution Standards

The 2015 Montana Legislature passed – and Gov. Bullock failed to veto – SB 325.  This bill sets up a loophole that prohibits state env’tl regulatory agencies from setting water quality protections that are strong enough to protect Montana’s rivers and streams.

PC: Hank Welles

Issue:  Since the 2015 legislative recess we’ve birddogged this new law (MCA 75-5-222) because it threatens to undermine basic federal baseline requirements that dictate how states are to set and enforce appropriate river health standards. In the most basic sense SB 325 says “if there is existing, ambient (natural) pollution in a river, a polluter shouldn’t have to treat their pollution discharges to a level cleaner than the natural condition of the river.” This makes sense in that many Montana rivers have naturally-elevated, ambient concentrations of otherwise harmful pollutants like arsenic, iron, etc and forcing folks to treat wastewater to a level cleaner than natural conditions isn’t the best use of resources. And if SB 325 ended there, Montana’s rivers might not have a problem.

The catch is that SB 325 also allows a polluter an exemption when a river is already degraded from man-made pollution. Montana should be focused on both cleaning-up existing river pollution and ratcheting-down other sources of man-made pollution, not creating loopholes that allow increased pollution and undermine river clean-up efforts.

For practical and legal reasons, Montana’s DEQ has struggled to create language implementing SB 325’s troubling pollution standard exemption mandate. Now, in late winter 2017, draft regulations are gaining traction and will soon be released for public comment. This means it is time to dig-in, do the scientific and legal research, and make sure out state is not allowed to circumvent key federal laws protecting Montana’s waterways or allow polluters a free-pass from doing their part to limit pollution discharges into local waterways.

Click here to visit the DEQ’s SB 325 workgroup page and access various implementing rule drafts and meeting minutes.

Why It Matters: SB 325 threatens Montana’s clean water by allowing polluters exemptions from meeting river health standards and, in so doing, undermines river clean-up efforts. As the saying goes, the devil is in the details – our concerns are two-fold:

First, the new law relies on variances – a regulatory tool that exempts polluters from meeting otherwise applicable pollution control standards – in a manner that we do not believe complies with federal law. We believe application of variances will not be in limited circumstances, or in a transparent, accountable manner that progressively brings a polluter into compliance with important river health standards while simultaneously allowing important river clean-up work to progress. Rather, agency meetings and internal draft rules indicate the rule will be used broadly on many waterways across the state to relax pollution control requirements for many different polluting sectors (including big industry and mines), and even for certain cancer-causing pollutants (in particular, arsenic).

Second,  SB 325 will set a new regulatory precedent that a polluter doesn’t need to ratchet-down its own pollution discharges (a) if existing man-made pollution in the receiving water cannot be fixed in a 5-year term, and (b) if it is not a “material” contributor to river pollution.

Think about those conditions: suddenly we’re talking about pollution control exemptions even if river degradation is man-made (not natural pollution, which is how the bill was sold to the public), and also now qualifying when polluters should reduce harmful pollution (e.g., if pollution isn’t material/significant compared to existing pollution, then the polluter doesn’t have to do their part).

Neither of these conditions have any grounding in federal law and, when applied, will encourage more – not less – pollution in our rivers, and will undermine multimillion dollar water clean-up plans; cleanups that are, by the way, paid for by taxpayers, not polluters.

Important Dates: DEQ will propose its draft rules implementing SB 325 in two parts. The first rule will be proposed to the Board of Environmental Review at its March 31, 2017 meeting, and likely be out for a 45-day public comment period soon thereafter.

What We’re Doing About It:

  • First, we’re birddogging the rulemaking process and, as you’ve read above, analyzing proposals to see if they meet important federal baseline requirements and whether they will harm communities and undermine river clean-up efforts.
  • Second, we will submit technical legal and scientific comments during the rulemaking to ensure our decisionmakers have the data and legal rationale supporting dramatic changes necessary to protect rivers and public health – not undermine it.
  • Last, once the rule parts are out for public comment, we will have a citizen comment letter you can send the state. Stay tuned!

We need your help to continue fighting back.

The water we drink, fish, and use is essential to our health and Montana’s way of life. No family should have to worry about safety when they turn on the tap, and no Montana river should run green with algal blooms.

Upper Missouri Waterkeeper needs folks who care about clean water and healthy Montana rivers to join us in protecting our waterways for today’s families and future generations – we can’t put up a fight without your help.  We must stand up for our rivers, now.

Your gift today will help Upper Missouri Waterkeeper fight efforts to destroy longstanding clean water protections, and to fight for our local rivers. We were founded to ensure that laws are enforced and health of communities are protected. We will not back down to industry and political pressures, and will not sit idly by while polluters attempt to water down pollution controls.

Working together we can speak with one powerful voice and act as one powerful force. Please help us fight for clean, safe water in Montana. Take action now. Join us today.