Montana’s Dept. of Environmental Quality (DEQ) is proposing significant changes to its groundwater pollution discharge permitting rules, and some of the changes are for the worse. In Montana, groundwater connectivity to nearby surface waters has been well documented and is the default presumption. This concept of connectivity between ground and surface water means that how we address groundwater pollution discharges can not only impact groundwater – which more than 60% of Montanans’ rely on for drinking water – but streams, lakes, reservoirs, rivers, and other water bodies.
What: DEQ is proposing “New Rule I,” “New Rule II,” and several definition revisions to rules concerning how it receives, evaluates, and makes decisions on applications or renewals to discharge pollution into groundwater.
New Rule I proposes to add new language codifying the agency practice of “administratively continuing” discharge permits that have expired. The proposed rule would allow the agency to “administratively continue” permits indefinitely upon their expiration, in essence short-circuiting the periodic permit renewal, justification, and review process. In Montana, DEQ has abused this exception to the rule by “administratively continuing” water pollution permits for decades, allowing polluting activities to escape meaningful, consistent review and justification.
Both surface water and groundwater discharge permits should only be valid for a finite period of time, traditionally five years. A time limit for a permit is critical because (a) permits are meant to be reevaluated in light of changing environmental conditions, and (b) water pollution permitting is designed expressly to protect high-quality water and uses of such water. Both scientifically and practically it makes sense to require permittees to re-justify the conditions of their permits periodically.
New Rule 1 is a raw deal for local water quality and the public because:
- History tells us that most existing groundwater discharges contain poor/weak pollution control limits based on the flawed assumption of infinite dilution capacity in groundwater.
- Sanctioning formal administrative continuance procedures, aka indefinite pollution permits without review, contributes to ‘death by a thousand cuts’ of water resources because the agency has rarely performed a science-based cumulative impacts analysis that takes into account the reality that most shallow groundwater discharges ultimately flow to nearby surface waters (and contribute pollution!).
- Without guaranteed permit renewals, public participation is given short shrift, if not eliminated, based on the agency’s unfettered discretion to sit on permits until it magically develops resources, or unilaterally decides to act.
New Rule II is less concerning as it enshrines the concept of providing the agency with fair notice of any concerns the public has with a proposed groundwater discharge permit decision.
“Definitions” Amendments to 17.30.1001 are the most concerning. The agency has proposed a new definition of “cumulative” to mean “the total nitrogen load from the public sewage systems reviewed and approved by the department under a common design plan or serving a common development.” There are several problems with this proposed definition:
- The proposed denotation of ‘cumulative‘ is a narrowed interpretation of how the word is commonly understood within environmental and water resource law, much less by the dictionary. DEQ’s definition would limit the term’s scope to solely entail nitrogen pollutant loads from public sewage systems. Under this definition, the term would limit “cumulative” groundwater discharge permit evaluation impacts to one pollutant (despite wastewater containing several, if not dozens, of potentially harmful pollutants) and limited review to only one sector’s discharge (the new ‘public sewage system’ definition under the Public Water Supply, Distribution, Treatment Act).
This definition does not faithfully apply mandates of the Montana Water Quality Act (MWQA) in assuring the protection and maintenance of high-quality water and uses thereof. By narrowing the scope of review for a pollution permit decision, this ‘cumulative’ definition would create a self-fulfilling prophecy where most pollution discharge permits from development will only look at direct wastewater impacts on local water quality on a given parcel of land. Because nutrient pollution standards in groundwater are far less stringent than those for surface water, limiting the scope of review to wastewater impacts solely on a given land parcel means most discharges would be deemed legally nonsignificant, exempting them from further review using a standardized level of treatment, without examining true cumulative impacts offsite.
DEQ’s proposed ‘cumulative‘ definition thus conflicts with the MWQA, which requires that each new or increased source of pollution be evaluated and conditioned as necessary to protect local water quality and ensure no degradation, including examination of combinations of pollutants from several sources within the same general area. Conversely, the ‘cumulative’ definition as proposed would undermine that mandate by moving the goal-post of discharge permitting to ignore impacts outside the project area when those types of impacts are expressly part of the mandatory permitting analysis.
Examples from other environmental laws show DEQ’s proposed definition of ‘cumulative‘ is both scientifically incorrect and improper as a matter of law. For example, under the Montana Environmental Policy Act (MEPA) ‘cumulative‘ refers to the proposed action’s collective impacts on the human environment within the borders of Montana when considered in conjunction with other past, present, and future actions related to the proposed action by location or generic type. MCA 75-1-220(4). The MWQA requires protection and maintenance of high-quality water and uses of water, and implementing rules require the evaluation of “cumulative impacts or synergistic effects,” analyses that necessarily evaluate the surrounding environment and other similar activities that, in conjunction with the proposed permit, could cause degradation. See MCA 75-5-303, ARM 17.30.715(2). DEQ’s proposed definition of “cumulative” is untethered to either of these longstanding definitions and uses of the phrase “cumulative.”
Similarly, the Army Corps of Engineers 404(b)(1) Guidelines for issuing permits to dredge or fill waters of the U.S. under the federal Clean Water Act contemplate cumulative impacts as focused on “the changes in an aquatic ecosystem that are attributable to the collective effect of a number of individual discharges of dredged or fill material.” 40 CFR § 230.11(g). This denotation implicates considering impacts outside the project boundaries. Likewise, in evaluating permits for Underground Injection Control EPA considers “the cumulative effects of drilling and operation of additional injection wells . . . during evaluation of the area permit application,” and EPA is authorized to deny injection permits on the basis of cumulative impacts under 40 C.F.R. § 144.33(c)(3). Again, the thrust of agency analysis is not confined to the project area but necessarily includes evaluation of the surrounding environment and consideration of the proposed action in conjunction with existing other sources of harm.
- The proposed definition of “wastewater” continues the flawed approach of attempting to shoehorn groundwater discharge permitting rules into the open-ended and less-stringent permitting process under the Public Water Supply, Distribution, and Treatment Act, as opposed to separate – and more stringent, broader scope – requirements under MWQA. Instead of narrowing the definition and attempting to relegate groundwater discharge permitting to consider evaluations under the Treatment Act, any rule amendments should include a suitably broad definition of “wastewater” that unambiguously ensures equal agency consideration of pollutant discharges to state waters under the MWQA.
- The agency’s proposed rationale for “why” these changes are necessary actually illuminates a better, alternative means of fulfilling the ostensible goal. The agency argues that a primary goal in its new “cumulative” definition is ensuring appropriate determination of ” cumulative nitrogen load for purposes of permitting requirements, making nonsignificance determinations, and applying the State of Montana’s nondegradation policy.”
However, there are less invasive, and more scientifically and legally defensible means, of accomplishing that goal. Specifically, if the primary concern is ensuring that no project’s wastewater discharges escape permitting by virtue of their volumetric size, or based on several distinct discharges relevant to the same plan of design being captured within a permitting decision, the agency could easily use the term “aggregate” instead of “cumulative.”
Black’s Law Dictionary defines “aggregate” as “formed by combining into a single whole or total, an assemblage of particulars.” As-applied to proposed 17.30.1022(1)(d), the agency could accomplish the desired outcome by stating “wastewater discharges under a common design plan or serving a common development that, in the aggregate, discharge less than one pound of total nitrogen per day…” (proposed language underlined.) Similarly, 17.30.1022(2) would be amended to state “Aggregate total nitrogen loads for permit exclusion.” This alternative term achieves the agency’s expressed purpose without running afoul of contrary application of the term “cumulative” under the WQA, MEPA, NEPA, the CWA, the UIC rules, or persuasive case law authority from the Montana Supreme Court and several federal appellate courts.
Amending ARM 17.30.1040 to lessen the time period for public notice of a public hearing will undermine the ability of the public and those most directly impacted from participating in decision making. Currently, the agency must provide at least 30 days notice for public participation on a proposed groundwater pollution permit. Under the new proposed rules, DEQ would more than halve that comment period and provide only 14 days for public participation. This amendment is problematic for several reasons:
- Any proposal to limit public participation is contrary to the traditional 30 day minimum notice requirements of MEPA, which applies as a corollary review applicable to groundwater discharge permitting decisions. Because a proposed groundwater pollution discharge could be very significant and implicate an issue of public concern that requires a more robust analysis, it would be contrary to the express purpose of MEPA for DEQ to short-change meaningful opportunities for public participation.
- The agency’s rationale states that shortening public participation will provide “flexibility” to the agency, an explanation that simply doesn’t hold water. The purpose of the groundwater discharge permitting program is to, among other items, ensure that pollution discharges do not cause harm to the environment or uses of water. Oftentimes evaluating such impacts requires significant investigation, which in turn requires time; weakening and lessening public participation time periods for groundwater discharges fundamentally undermines the explicit water resource protection imperatives of the MWQA as guaranteed by Montanans’ constitutional right to a clean and healthful environment. If anything, the agency should be providing transparent measures for allowing easy extensions to public comment periods, not shortening the baseline timetables for public participation.
- Of note, the corollary surface water discharge permitting program uses a standard 30-day comment period. To the extent that DEQ’s rule rationales consistently opines that a key reason for these rule updates is to bring clarity and coherency to groundwater permitting and models the surface discharge program, it makes no practical sense to short-change public participation opportunities.
Instead of creating procedures that double down on scientifically flawed and bad water policy that kicks the can down the road and puts polluters in charge of local water quality, DEQ should instead be committing resources necessary to adequately reviewing, conditioning, and in some cases denying, groundwater discharge permits, all with clear means for robust public notification, education, and participation.
As our waterways continue to face increased threats of pollution, now is not the time to walk back on protections and put polluters in charge of our clean water resources. Thank you for speaking up for Montana’s waters!