FAQs: Round 2 – Montana Proposes Eliminating Numeric Water Quality Standards (Again)

What prompted this rulemaking and the elimination of Montana’s numeric nutrient criteria?

Short Answer: DEQ was directed to eliminate numeric nutrient criteria by Senate Bill 358 of the 2021 Legislative Session.

Long Answer: In 2014, Montana adopted precedent-setting numeric nutrient standards. The rule package included numeric criteria representing concentration-based nitrogen and phosphorus thresholds by which to judge a healthy river and to control human-based pollution sources, and a “variance” rule that exempted most major wastewater discharges in the state from meeting science-based pollution limits for 20-year periods of time.

In 2016, Waterkeeper filed a federal lawsuit targeting EPA’s approval of the nutrient variance rule, arguing that 20-year exemptions for polluters without any guarantee of when or how science-based water quality standards will be met violates federal law. In 2019, the federal District Court of Montana agreed with Waterkeeper in most respects, holding EPA’s approval of Montana’s nutrient pollution exemption scheme unlawful and most polluting sectors were thereafter not allowed to use a variance to escape responsibility for controlling, and treating, their nutrient wastewater. The State of Montana and EPA appealed the District Court decision to the 9th Circuit Court of Appeals, ultimately resulting in the court’s ruling that approximately 36 municipal dischargers in Montana could use tailored variances to slowly address nutrient pollution control. Industrial and corporate polluters were still not able to utilize nutrient variances insofar as they could not demonstrate economic harm from meeting pollution criteria.

In response to these court cases and limiting the availability of variances, the 2021 Legislature passed Senate Bill 358, a special-interest bill supported by the oil, gas, and mining industries and municipalities. SB 358 attempted to eliminate all numeric nutrient science-based standards for our waterways and automatically revert to less protective “narrative” standards. For example, imagine the difference in a numeric pollution limit that states a discharger cannot exceed .3 mg/L concentration, as opposed to a narrative pollution limit that says “surface water shall be free from harmful substances that may inhibit aquatic life.” The former is quantifiable, not subjective, and not reactive – i.e., you don’t need to wait for harm to occur before taking action to limit a causal pollutant known to cause harm to uses of a river.

In response to the 2021 Legislature’s passage of SB 358, Waterkeeper and local fly fishing businesses requested that Governor Gianforte veto SB 258, but in April the Governor signed the bill into law. The passage of SB 358 brought us back to square one, allowing polluters to recklessly pollute without any accountability.

Once the bill was signed into law, Waterkeeper filed a legal petition to the Environmental Protection Agency (EPA), the federal Clean Water Act (CWA) oversight agency, requesting the agency determine that changes to Montana’s water quality standards under SB 358 are unlawful and failed to protect Montana’s waterways and their uses, and to reinstate science-based numeric nutrient standards.

In the meantime, DEQ re-formed the Nutrient Work Group to begin a rulemaking process implementing Montana’s backslide from numeric nutrient criteria to narrative nutrient criteria, including a so-called “adaptive management program” for nutrient pollution. In early 2022, DEQ proposed New Rule 1, the first of the two-part rulemaking in response to SB 358. Waterkeeper opposed the rulemaking for violating the CWA, lacking any scientific basis, and removing our ability to proactively control pollution discharges, degrading water quality and harming businesses, drinking water, and aquatic and fisheries habitat. In March, New Rule 1 was published.

That same month, Waterkeeper sued the EPA for failing to approve or disapprove revisions to Montana’s water quality standards. In response to the lawsuit, in May the EPA sent DEQ a letter disapproving core sections of SB 358, leaving numeric nutrient criteria in full-effect and applicable for identifying healthy rivers and for developing and enforcing pollution controls against all sectors. Since EPA’s disapproval of SB 358, the Nutrient Work Group has continued to advance requirements of SB 358, which brings us to Spring 2024, where DEQ has again proposed the adoption of a revised New Rule 1, New Rule 2, and Department Circular DEQ-15 (procedures and requirements related to New Rule 1 and 2).

What are the main concerns with Montana’s proposed revisions to nutrient water quality standards?

Proposed narrative water quality standards for nitrogen and phosphorus …

  1. Are not protective and therefore conflict with requirements of the Clean Water Act.
  2. Abandon numeric criteria, contrary to accepted present-day science that supports the need for preventative control of nutrients to protect surface waters from pollution and degradation
  3. Allow new and increased nitrogen and phosphorus discharges to our waterways without evaluating cumulative caps or a waterway’s assimilative capacity
  4. Are inherently reactive because they do not allow Montana DEQ to place any limit on nitrogen or phosphorus pollution before it has already wrecked significant damage on recreation and aquatic life
  5. Do not address critical protections for lakes, reservoirs, and other waters downstream of rivers and streams.
  6. Require inadequate representative sampling for nutrients and algal biomass, allowing harmful pollution events to be missed for months, or even years.
  7. Improperly delay accountability and enforcement for polluting sectors by advancing an “adaptive management program” based on 3-5 year intervals of assessment, allowing years of delay in detecting and responding to needs for improved pollution control

Why is the state pushing forward an unlawful process that was already shut down once by the EPA?

Unfortunately, Montana’s water quality standards and pollution control criteria have been subsumed by politics, and science is no longer guiding waterway protections. SB 358 was a political move by the state’s largest polluters to avoid accountability and near-term investment in pollution control technology. At its most basic, SB 358 represents polluting interests clear message that they do not want to pay for more pollution control technology. Although DEQ is responsible for protecting our environment’s health and knows well that numeric nutrient criteria is essential for protecting waterway health – before it becomes degraded – the Legislature and Governor has directed the agency to walk backwards on science and ditch numeric nutrient criteria for less precise or protective narrative criteria.

What is nutrient pollution?

Nutrients, specifically, phosphorus and nitrogen, are naturally occurring chemicals that in certain concentrations help maintain healthy aquatic ecosystems. Conversely, too much nutrient loading harms aquatic ecosystems, usually presenting 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 drinking 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. The infamous “dead zone” in the Gulf of Mexico is directly related to nutrient pollution from the Mississippi River Basin.

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. 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 human sources of nutrient pollution that are degrading our rivers.

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, subjective standards that often require action after a waterbody is already polluted). EPA has long declared numeric nutrient criteria as the ultimate goal because they are science-based concentrations of pollutants that can be measured at discharge points and calculated to conservatively guarantee adequate protection for waterways from algal blooms and degradation. They are not subject to debate or judgment calls and make the job of identifying, managing, and enforcing water pollution controls 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 – largely because best available pollution control technology for nutrients is expensive. Ironically, this rationale ignores the robust record demonstrating that nutrient pollution – which is to say, waiting until rivers are polluted and degraded – is far more expensive than investments necessary to keep a river healthy and clean.

Narrative criteria also create a worrisome scenario where Montana’s rivers and waterways will become degraded or severely polluted before regulatory agencies know they are polluted, or before reactive “thresholds” that would require action are satisfied. Making reactive decisions once a waterway is polluted is difficult, costly, and detrimental in the long-term. It’s common sense, good policy, and good economics behind keeping a waterway clean, rather 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 takes time and effort. 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 and this proposed rulemaking.

Why is the focus on point source polluters and why hasn’t nonpoint source pollution been addressed?

While nonpoint source pollution (diffuse pollution from unregulated sectors such as sprawl development and agriculture) is still a challenging issue. However, the fact that politicians have exempted some sectors from pollution control requirements is not a valid rationale for attempting to exempt every other polluting sector from pollution control. We first need to solve problems in the areas where we know pollution is occurring, and where existing technology can help make dramatic improvements –pollution from point sources.

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 agriculture), Montana needs to focus on finding science-driven solutions that will truly protect our water quality instead of “adaptive”, subjective rules that incentivize a race to the bottom for local waterway health.

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. Industrial polluters can also 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.]

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 need to actually meet water quality standards and protect local water quality.

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 wastewater treatment works. In fact, the alleged reason for gutting Montana’s protections against nitrogen and phosphorus pollution was to avoid excessive costs to dischargers, which has already been addressed by recently enacted federal and state regulations.

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 can you do to help?

Montana DEQ is accepting public comments on the proposed rule revisions now through June 10, 2024. Use your voice to speak up for the importance of protective, science-based numeric nutrient standards for our waterways – you can submit comments to DEQ here.

DEQ is also hosting a public hearing on the rulemaking on June 10th at 10:00am both in person (Room 111, DEQ Metcalf Building, 1520 East 6th Ave, Helena) or online.