For the past five years, Upper Missouri Waterkeeper has been in federal court to ensure science – not economics – drives pollution control standards for Montana’s waterways. And we’re winning.
Montana scientists recognized over twenty years ago that nutrients – e.g. nitrogen and phosphorous – are some of the most pervasive and challenging pollutants confronting our state. The only state providing the headwaters to three transcontinental river systems, Montana’s rivers and streams are uniquely sensitive to pollution. Likewise, we possess some of the last intact and healthy regional ecosystems (think Glacier and Yellowstone) with rare and threatened flora and fauna which depend on clean, healthy waterways. Similarly, Montana’s clean waterways support a diversity of economic activities from traditional agriculture, to municipal water supply, to recreational use and our inspirational outdoors heritage.
For these reasons, in 2014 Montana adopted the precedent-setting Numeric Nutrient Rule Package, consisting of two main parts:
1. Science-based numeric criteria setting limits on the amount of nitrogen and phosphorous most Montana waterways can accept and remain healthy, and
2. A “variance” rule that weakened those science-based pollution standards for 20-years or more, letting Montana’s rivers receive more pollution than is healthy and letting most large polluters in the state off the hook from doing their share to protect our world-class waterways.
The original science-based nutrient criteria rules recognized Montana waterways’ unique status as headwaters for the nation, their sensitivity to increasing pollution threats, and their critical role supporting our outdoors-based economy and outdoors heritage. Unfortunately, the companion “variance” rules exempted most polluters across the state from complying with these nutrient standards despite the wide body of evidence supporting stringent pollution limits to protect Montana’s rivers from decline.
Because the variance rule undermined the rule of law and threatened waterways across the state with more pollution and little hope of progress, we took the issue to federal Court in 2015. In 2019, the federal District Court of Montana agreed with us, holding Montana’s nutrient pollution exemption scheme unlawful and contrary to the Clean Water Act. This was a big victory for clean water in Montana, representing a legal duty for most of the state’s largest polluters to implement progressive planning that would result in state-of-the-art infrastructure upgrades better protecting our waterways and the wildlife, bug life, recreational and agricultural uses, and the countless businesses reliant upon clean and healthy rivers.
Unfortunately, since the 2019 Order, Montana and EPA have dragged their feet and failed to make meaningful revisions to Montana’s nutrient pollution control program, and in early 2020 even attempted to void our strong, science-based numeric nutrient pollution standards and wholesale abandon efforts to regulate nutrient pollution. So in March 2020 we went back to court to defend the role of science-based nutrient pollution standards.
In spring 2021 we’re gearing up for Oral Argument in the Ninth Circuit Court of Appeals, defending our victory in Montana District Court, the rule of law, and the importance of science-based pollution control standards. Waterkeeper will continue the fight for science knowing these lawsuits carry precedential value and high stakes not just for Montana, but across the nation, as well. The results of this nutrient variance campaign will influence generational, multi-million dollar pollution control investments in Montana’s cities, industries, and businesses across the state, and influence pending nutrient variance rules in states across the nation.