What’s the big deal with Senate Bill 358 (2021) and Upper Missouri Waterkeeper’s Petition to the EPA?
Senate Bill 358 represents the first time in our nation’s history that a state eliminated strong, science-based nutrient standards protecting rivers from harmful algae blooms. The bill also radically expanded exemptions for polluters to use and avoid stringent pollution control requirements during mandatory permitting. Together, these provisions have Montana taking a huge leap backwards in using strong, science-based standards to require polluters to do their fair share in protecting our waterways from degradation. Federal law doesn’t allow states to eliminate science-based standards for waterway health because they are inconvenient or require significant investments in pollution control technology.
How did Montana’s water quality standards get here and why was Senate Bill 358 introduced in the first place?
SB 358, introduced by Sen. John Esp (SD-30) at the request of the Montana League of Cities, and supported by the oil, gas, and mining industries (our state’s largest point source polluters), was a direct political, special-interest driven reaction to Waterkeeper’s successful nutrient variance litigation that voided Montana’s unlawful variance scheme and lack of mandatory progress toward complying with nutrient water quality standards. This federal court victory recognized that Montana’s rule never required compliance with science-based nutrient criteria that protect our waterways, and ordered the State to come up with a timetable for achieving science-based standards. Instead of working towards a solution, the State Legislature scraped all science-based standards with the passage of SB 358 and went back to square one, allowing polluters to recklessly pollute our waterways without any accountability.
Big polluters argue that pollution control technology doesn’t exist and they can’t meet numeric nutrient criteria. Is this true?
Let’s be crystal clear: every city and town in Montana can control pollution significantly better with existing technology than they are currently doing. So too can industrial polluters do far more to control their pollution impacts on waterways. [A quick review of the state’s pollution discharge permits on DEQ’s website highlights the state’s big polluters – oil, gas, mining, and cities and towns – who stand to directly benefit from this backslide in water quality protections.]
Likewise, no law requires polluters to upgrade their treatment facilities overnight. Rather, the law and recent federal court cases have held that polluters must have a transparent, accountable timeline for making progress in upgrading their pollution controls, respective to their sectors and sizes, and at the end of a timeline we need to actually meet water quality standards and in doing so, protect local water quality.
It’s a twisted half-truth to argue “technology doesn’t exist and the standards can’t be met right now.”
The problem in Montana has long been that both municipalities and industrial sectors are unwilling to invest in further pollution control technologies and have the mistaken assumption that they need to meet the numeric standards overnight. Other criticism is that small towns can’t afford to upgrade their waste treatment works. Despite this ongoing rhetoric of cost concerns, the State Legislature and Governor are attempting to eviscerate water quality standards and remove the goal posts of clean water protection rather than developing new ways of investing in and supporting small communities.
The truth is that dischargers will not have to meet numeric criteria overnight, standards act as the goal post, and the ball should continuously move down the field toward the goal. Instead, they’ve removed the goal post all together, taking with it any incentive to create a technology-based solution that will better treat our wastewater. Meeting numeric nutrient standards is a tough but worthy battle, with the stakes being the fate of Montana’s clean water and river systems. Big polluters, cities, and towns need to invest in the resources that will protect our water quality and waterways.
What is nutrient pollution?
Nutrients, specifically, phosphorous and nitrogen, are naturally occurring chemicals that in some concentrations help maintain healthy aquatic ecosystems. Conversely, too much nutrient loading harms aquatic ecosystems, usually seen in the form of troublesome algal blooms that hurt insect communities, displace fish populations, and degrade water quality and aquatic habitat. Severe algal blooms can become toxic, create fish kills, poison water supplies, and can even harm big wildlife of your dog, and sadly, we see an increasing rate of harmful algal blooms in Montana waters each summer.
Nutrients enter our waterways through a variety of ways. In rural areas, agricultural runoff from fields can wash fertilizers into the water, and in urbanized or developing areas with construction, nutrient sources can include treated wastewaters from septic systems and sewage treatment plants, and stormwater runoff that carries pollutants such as lawn fertilizers.
Montana scientists know that most ecoregions in our state rely on a delicate balance of nutrients to remain healthy and free from noxious algae, and Montana’s rivers are particularly sensitive to unnatural nutrient loading. A key sign of an unhealthy, imbalanced river system is the growth of noxious algae – as seen across many rivers in Southwest Montana in the hot summer months. Nutrient pollution loads the gun for algal blooms while warm temperatures, sunlight, and low flows pull the trigger. We can’t control the weather, but we can certainly control manmade sources of nutrient pollution that are degrading our rivers.
Why is the focus on point source polluters and why haven’t nonpoint source polluters been addressed?
While nonpoint source pollution is still an unaddressed issue by our state agencies, we first need to solve problems in the areas where we know pollution is occurring – point sources. Scientifically, we know that nonpoint source pollution occurs from a variety of sources and agriculture and sprawl development are some of the largest contributors, which can be problematic to our wetlands, waterways, and water quality.
Until we have a meaningful regulatory program for nonpoint source pollution, the solution to fixing and keeping our waterways healthy is not to let point source polluters off the hook. Instead of finger pointing and placing blame on nonpoint source polluters (often at agriculture), Montana needs to focus on finding science-driven solutions that will truly protect our water quality and not race to the bottom as SB 358 has done.
Why was the signing of Senate Bill 358 into law illegal?
When Governor Gianforte signed SB 358 into law on April 30, the State violated the federal Clean Water Act.
The Clean Water Act requires the EPA to review and approve any changes a state makes to their water quality standards, yet SB 358 included an immediate effective date, ignoring the mandatory role of the EPA in overseeing pollution control programs and approving any revisions before they become effective. EPA approval is required because, in the past, states haven’t been good stewards of protecting local water quality.
Secondly, the repeal of numeric nutrient criteria and adoption of a “to-be-determined” adaptive management program fails to provide any proof that designated uses of our waterways (e.g., fishing, swimming, drinking, etc) are protected from harmful nutrient pollution, as mandated by the Clean Water Act. Essentially water quality standards, including nutrient standards, must be based on sound science showing what’s necessary to best protect river health; state’s don’t have the option of revoking a science-based standard because it requires new pollution controls or economic investments in better technology from regulated sectors.
Last but not least, the extreme new “nonsignificance” exemptions in SB 358 violate the EPA’s antidegradation policy and mandatory public participation rules by vastly expanding what types of pollution discharges are exempted from stringent environmental pollution permit reviews intended to protect our rivers from degradation, in the process also ignoring the public’s right to participate meaningfully in permitting decisions for polluting activities. Waterkeeper’s petition to the EPA specifically requests that the agency take action to correct these wrongdoings.
Why file a petition as opposed to a lawsuit?
At this moment, there’s not a meaningful lawsuit at-hand. A lawsuit against the State of Montana would likely end up in the Montana Supreme Court, but the Court would question whether the case is even ripe since the EPA hasn’t ruled on the issue at-hand, and so too would question whether the proper challenge is to EPA’s action – or here, inaction – concerning Montana’s revisions to its water quality standards.
It is the EPA’s duty to affirmatively review all revisions to Montana’s water quality standards, and to disapprove any changes that represent a step backward in protecting waterways on the basis of science. Therefore, fixing an unlawful revision of a state water quality standards must first be assessed by the EPA. EPA must be proactive in addressing the bad-faith and unlawful provisions of SB 358, and Waterkeeper’s petition ensures they will have to take action, or be taken to federal court to defend their inaction.
Why was the petition filed to the EPA?
Under the federal Clean Water Act, the EPA is the mandatory backstop authority required to make sure states are faithfully implementing pollution controls. If they don’t, as Montana and Governor Gianforte have done by signing Senate Bill 358 into law, the onus is on EPA to step in and protect water quality when a state is unwilling to do so in compliance with federal law. Think of the EPA as an umpire calling the shots with ultimate authority to void Montana’s unlawful revisions to its water quality standards.
Is the EPA required to respond to the petition?
Yes. The petition was brought under 5 U.S.C. §§ 553(e) and 555(e) of the Administrative Procedures Act and the federal Clean Water Act Section 303(c). These laws require EPA to take action on revisions to water quality standards within 90 days. If the EPA fails to take action on Montana’s SB 358 within the 90-day timeframe, Waterkeeper has the ability to sue them for an unreasonable delay. Alternatively, if they do respond but fail to address our requests and follow the law, we can also challenge those bad decisions in court.
Why are numeric criteria superior to narrative criteria?
Under the federal Clean Water Act, water quality standards can either be numeric (proactive, science-based, and measurable concentrations of pollutants that can enter a waterbody and remain healthy) or narrative (reactive, ambiguous standards that only require action after a waterbody is already polluted). Numeric nutrient standards are the ultimate goal because they are science-based concentrations of pollutants that can be measured at discharge points and calculated to guarantee adequate protection for waterways from algal blooms and degradation. They are not subject to debate or judgment calls and make the job of controlling and addressing water pollution much more efficient. However, municipal and industrial polluters favor narrative criteria that are more lenient, don’t require black-line tests of compliance at law, and allow them long delays in making investments in pollution controls and doing their fair share to protect our waterways.
Narrative criteria also create a scenario where Montana’s rivers and waterways will become degraded or severely polluted before regulatory agencies know – or are required – to act. Making reactive decisions once a waterway is polluted is difficult, costly, and detrimental in the long-term. It’s common sense and good economics that keeping a waterway clean is easier – and more profitable – than trying to clean it up after it’s polluted.
Since numeric criteria better protect our waterways from degradation, why haven’t more states adopted such standards?
Adopting and implementing numeric nutrient criteria take time and effort to develop. Water quality monitoring, assessment, scientific modeling, and financing are heavy but important tasks to undertake before numeric criteria can be adopted. Some states don’t have the political will to take on these hard pollution issues. Other states legitimately haven’t made the economic investment in gathering data and creating standards.
Regardless, the EPA has strongly encouraged all states in the country to work toward developing numeric nutrient criteria since 2000, and EPA rules actually presume that numeric criteria are appropriate unless there is a specific showing that another option is scientifically appropriate.
Once adopted, a state cannot repeal numeric criteria simply because they are unwilling to invest in pollution control technologies that will give our waters better protection, yet that is exactly what Montana has done through Senate Bill 358.
When are dischargers expected to meet the numeric nutrient criteria?
Every point source polluter should be working to optimize their existing facilities, developing plans for upgrading their facilities for better treatment, and examining other alternative disposal strategies such as wastewater recycling and re-use on dryland, which keeps harmful pollution out of the river.
Sometimes a pollution discharge permit is at a scale that upgrades to treatment technology is the best approach to ensuring any waste stream can be safely discharged to a receiving waterway. Others are so big that their waste stream would overwhelm the receiving waterway’s assimilative capacity, and therefore they should not only be optimizing and planning to upgrade treatment technology, but also considering removing some portion of the waste stream and recycling for alternative disposal or reuse on dry land.
Whether a point source polluter needs to do a lot, or a little, to best protect local waterways is a case-by-case analysis where a “one-size-fits-all approach” isn’t scientifically defensible or reasonable. Numeric nutrient water quality standards play an essential role of being “goal posts” for polluters: they are the goals to which they are always improving their facilities. While standards may not be attainable immediately, polluters should always be working toward reaching those standards and investing in the research and development necessary to incentivize better pollution control technology.
In fact, this is the exact technological innovation incentive that Congress envisioned when it adopted the federal water pollution control act (the Clean Water Act) almost 50 years ago. Often, we don’t have a solution to a problem until there are hard deadlines and timetables for making enforceable progress. Enforceable, accountable progress towards better protecting Montana’s waterways from ongoing and increasingly severe algal blooms on the basis of science is precisely what water quality standards are designed to accomplish.
What is Waterkeeper doing while we await a response from the EPA?
While the petition is pending, we are participating in the SB 358 Nutrient Work Group as the representative for Environmental Advocacy Organizations across the state. Although we disagree with the lawfulness of the new narrative nutrient rulemaking, as the saying goes, if you don’t have a seat at the table you won’t be heard. We are participating in the process, emphasizing lawful and science-based solutions to protect our waterways, and are keeping an eye on what, and how, Montana intends to address nutrient pollution.
The big picture remains the same: Upper Missouri Waterkeeper is committed to ensuring the State of Montana and the EPA follows the law, uses best available science in setting water quality standards, and that we reinstate enforceable numeric nutrient criteria that protect Montana’s waterways from harmful algal blooms.