On February 24, 2020 EPA acted on Montana DEQ’s November 2019 submission of revised nutrient variance rules and ‘disapproved’ the revised rule package.
EPA’s February 24, 2020 Letter to MDEQ disapproves the recently submitted and revised variance rule, but also belatedly approves other sections of MDEQ’s variance rules which it previously did not take action upon. Under the federal Clean Water Act revisions to state water quality standards – including variance rules – require EPA approval before becoming effective as a matter of law. The February EPA action letter means MDEQ cannot use its Fall 2019 revised rule in permit decisions and, instead, a previous variance rule version from Oct. 31, 2017 is now in effect.
- CLICK HERE TO READ EPA’s 2/24/2020 Action Letter on Montana’s Revised Nutrient Variance Rules
Backstory
In 2014, more than twelve years after first directed by EPA to do so, Montana adopted the “Numeric Nutrient Rule Package,” which consists of Water Quality Standards geared toward addressing pollution problems caused by excessive, unhealthy amounts of nitrogen and phosphorus in our rivers and streams.
Montana’s Nutrient Rule Package has two parts: (1) numeric criteria that limit nitrogen and phosphorus pollutants in surface waters, and (2) a so-called variance rule, which authorizes weaker pollution limits than the science-based water quality standards for these pollutants. While the new, numeric limits on nitrogen and phosphorus represent a visionary step forward in Montana’s work to address nutrient pollution in local rivers and streams, when bundled with the general variance rule, those science-based protections are negated. The nutrient variance rule represents two steps backward for Montana because it exempts most major wastewater dischargers in the state from meeting science-based pollution limits for 20 year periods of time.
In 2016 we filed a federal lawsuit targeting EPA’s approval of Montana’s Numeric Nutrient Rule Package, specifically its “nutrient variance rule,” arguing that 17-20 year exemptions for entire sectors of polluters, without guarantees of when or how dischargers will meet science-based water quality standards, violates federal law.
The Summer 2019 District Court Ruling
The federal district court in Great Falls agreed with Upper Missouri Waterkeeper on our key practical arguments:
- Montana’s variance scheme unlawfully provides generational (17-20 yr) exemptions from proper pollution controls by improperly providing dischargers time to achieve the ‘highest attainable condition’ as an “end goal” rather than the starting point for achieving criteria necessary to protect water quality; and
- Montana’s variance scheme fails to lay out a transparent, enforceable timetable ensuring dischargers make near-term progress complying with nutrient water quality standards criteria (science-based allowable levels of Nitrogen and Phosphorus in western MT waterways).
On September 20, 2019 the District Court issued its final judgment and order in our lawsuit challenging EPA’s 2017 approval of MDEQ’s general nutrient variance rule. That court order required DEQ to submit a revised rule to EPA by Fall 2019 that, among other things, set forth a reasonable pollution control timeline that begins with the current variance limits and ends with compliance with the strong, science-based criteria Montana adopted in 2014.
MDEQ’s Fall 2019 Revised Nutrient Variance Rule
The specific purposes of MDEQ’s revisions to its nutrient variance rules in Fall 2019 was to amend its rules to comply with the federal district court order finding portions of its rules unlawful and contrary to the federal Clean Water Act. Upper Missouri Waterkeeper performed a technical review of DEQ’s draft rule revisions in summer 2019, identifying several problematic provisions that together represented a fatal flaw rendering the rule revisions unlawful and antithetical to the district court’s rulings.
- CLICK HERE to read Upper Missouri Waterkeeper’s technical comments on MDEQ’s Fall 2019 Nutrient Variance Rule.
EPA’s February 2020 disapproval letter interprets the district court’s order in the same manner as Waterkeeper, and therefore EPA was bound to disapprove MDEQ’s rule submission or risk further litigation (EPA cannot approve unlawful state submissions of water quality standards rules without subjecting itself to liability).
What’s EPA’s February 2020 disapproval letter mean?
First off, its important to note that both EPA and the State of Montana have officially, this winter 2020, appealed the District Court of Montana’s summer 2019 rulings that agreed with Upper Missouri Waterkeeper and required significant revisions of Montana’s nutrient variance rules. In turn, to preserve our case and to ensure that we have a strong position from which to continue advocating for science-based pollution controls in Montana, Upper Missouri Waterkeeper has cross-appealed EPA and the State of Montana’s appeals.
MDEQ’s Fall 2019 Variance Rule was in essence the State’s legal gamble that it will prevail on appeal and is willing to cater to polluter interests. Instead of following the district court’s order and requiring, much less prioritizing, near-term investments in clean water – the real golden goose of Montana and a key driver of our state’s multi-billion dollar annually outdoors-based economy – our state legislature and DEQ wants to pursue exemptions for industry and polluters that do nothing to address the very real threat nutrient pollution continues to pose for Montana waterways.
Suffice to say another round of court lies ahead, this time before the 9th Circuit Court of Appeals, because EPA and Montana refuse to use science – rather than economic cost-benefit analyses – as the primary metric guiding river pollution controls. Put simply, the State of Montana and EPA are failing to ensure polluters do their part to protect fishable, swimmable, drinkable water in Montana.
What about EPA’s belated approval of MDEQ’s “poison pill” variance language in its February 2020 Disapproval Letter?
Ahh yes, Montana’s “poison pill” language. When the state legislature originally gave MDEQ the green light to adopt science-based numeric nutrient criteria (that would ostensibly put significant limits on all point-source nutrient dischargers in the state) it bundled the scientific criteria with the much discussed variance exemption rules. A part of the variance rule was “poison pill” language, in essence a back-up plan geared to polluter interests, that would be triggered if a court ever found Montana’s variance rule unlawful or EPA disapproved Montana’s variance rule. In either of those circumstances, according to Montana law the numeric nutrient criteria would go POOF and disappear, and DEQ would not apply those protective science-based standards in permitting decision.
This poison pill language, however, is an invention of Montana state law and is contrary to the explicit – and singular – manner in which a state may remove water quality standards pursuant to federal law. Put another way, when a state pollution control law is contrary to a well-established federal pollution control law in the same context, the state law is trumped by the applicable federal law. Such is the case at-hand now.
EPA’s February 2020 Letter makes clear it is not pleased to be put in the position of having to disapprove MDEQ’s Fall 2019 Revised Rule because it, as a matter of policy, agrees with the State of Montana’s argument that its approach to variances is lawful, contrary to Upper Missouri Waterkeeper and the federal district court of Montana’s interpretations. Therefore EPA’s February Letter also takes belated action on the poison pill language of Montana’s variance rules; previously EPA had not taken action on the poison pill clause.
Upper Missouri Waterkeeper believes EPA has acted unlawfully in approving Montana’s poison pill clause because the state law rules that would automatically revoke the state’s numeric nutrient criteria circumvents the specific process for removing water quality standards laid out by the federal Clean Water Act.
What’s at stake here?
All the technical discussions aside, let’s remember what this litigation is all about: clean, healthy rivers in Montana. Of all the pollution problems confronting Montana’s waterways, nutrient pollution is at the top of the list. In turn, of all the sources of nutrient pollution in the state we, the public, have powerful legal controls – and responsibility – to control point sources of pollution, all towards the goals of ensuring our waterways remain fishable, swimmable, and drinkable.
Sadly time and again the theme in Montana environmental policy is that political expedience and polluter budgets hold more clout than common-sense or the rule of law, with the loser of this imbalanced equation being Montana waterways. When our regulators and decisionmakers fail to mandate public and private investments in clean water pollution controls, or require polluters to plan for the future we, the public, end up literally footing the bill in terms of worse water quality. As the saying goes it’s far more efficient to keep something clean than it is to degrade something and pay to clean it up later; sadly, this is the exact opposite approach taken by Montana when it comes to nutrient pollution.
Despite a robust body of science demonstrating Montana waterways are incredibly sensitive to nutrient pollution and, in most cases, the majority of waterways need less nutrient pollution entering them to remain clean and healthy, decisionmakers in Montana don’t want to enforce our pollution control rules and ensure everyone does their part to keep our waterways clean.
Upper Missouri Waterkeeper is committed to the long-play here: it is critical that Montana revise its approach to nutrient pollution and instead of emphasizing unlawful pollution exemption schemes, instead prioritize investments in clean water. The true wealth of Montana is our one of a kind headwater landscapes and our fishable, swimmable, drinkable water.