On October 30, 2020 the Federal District Court of Montana Issued An Order In Our (Second) Nutrient Pollution Exemption Lawsuit Holding EPA & MT Accountable to Improve Wastewater Pollution Controls For Most of MT’s Largest Polluters
In response to our Spring 2020 lawsuit challenging EPA’s approval of Montana’s removal of science-based nutrient pollution rules, the Great Falls federal District Court ruled that “EPA has failed to comply in good faith with the [Clean Water Act’s] statutory mandate” and “tried to…invalidate entirely Montana’s base numeric nutrient [Water Quality Standards] and general variance [program]”.
The Court specifically ordered EPA and Montana DEQ to perform the precise tasks they were ordered to complete in Fall 2019 – and which they ignored, giving rise to this second legal action – including: (1) developing a pollution control program that ensures polluters meet the Highest Attainable Condition as soon as possible, (2) creating a roadmap for ensuring polluters ultimately reach compliance with Montana’s strong, science-based pollution standards for nutrients, and (3) adopting a transparent and enforceable timeline for these actions and activities.
Read the Consolidated Order Waterkeeper by clicking here.
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 protections are negated. The 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. In two orders issued in spring and summer 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 contrary to the federal Clean Water Act.
District Court Victories in 2019
The District Court’s summer 2019 Order specifically required Montana and EPA to rely on Waterkeeper’s expert science reports which showed both (a) the appropriate levels of pollution control that most polluters can meet with infrastructure upgrades and (b) the timetables under which these pollution control upgrades were possible, and develop and implement a revised nutrient pollution control program that ended with compliance with protective, science-based water quality criteria. The summer 2019 District Court order was a BIG win for clean water and nutrient pollution control in Montana: it represented a binding legal duty for most of Montana’s largest nutrient polluters to implement state-of-the-art infrastructure upgrades that would better protect downstream receiving waterways and the fisheries, bug life, recreational and agricultural uses, and countless businesses that depend on clean, healthy rivers!
Unfortunately, instead of following the Court’s directive in good faith, Montana and EPA instead dragged their feet and failed to make meaningful revisions to Montana’s nutrient pollution control program during Fall 2019. For this reason EPA was forced to “disapprove” Montana’s resubmitted nutrient rule package during winter 2020, because the rule package still failed to require pollution control upgrades and an end compliance date. EPA’s February 2020 “disapproval” action meant, as a matter of law, that the old, illegal variance exemptions were no longer available, which led the State of Montana to implementing its “Poison Pill” – a corollary section of state law that said that science-based nutrient criteria would no longer be binding if a variance exemption was deemed unlawful. Notably, EPA had never approved the Poison Pill, meaning it didn’t previously have legally binding force in Montana, despite DEQ’s insistence otherwise. In fact EPA had cautioned DEQ against relying on the Poison Pill as an “escape from compliance” early on in the nutrient rulemaking process in 2015 and 2016.
More Foot-dragging In 2020
This meant that as of spring 2020 there was little to no meaningful work being done by our state decisionmakers to improve the status of nutrient pollution control in Montana, despite federal District Court rulings specifically requiring action to ensure polluters better protect Montana’s waterways. In essence we were left with a ridiculous scenario where EPA and Montana were acting like children that, upon losing their legal fight to avoid implementing science-based pollution requirements in 2019, decided to take their toys from the sandbox and go home, rather than act like adults and figure out the reasonable compromises and planning necessary to better protect Montana’s waterways from nasty algal blooms.
Meanwhile the clock has continued ticking, polluters have been allowed to continue degrading Montana’s waterways with unhealthy volumes of nutrient wastes without making needed investments in technology & pollution control upgrades, and 5 years has literally been wasted by Montana, DEQ, and polluter intervenor groups trying to undermine the rule of law and rightful role of science in setting pollution limits.
Upper Missouri Waterkeeper will continue our strong work fighting to ensure science – not economics – drives pollution control standards for Montana’s rivers and, likewise, that EPA and our State holds all polluting sectors accountable to do their fair share to protect our world-class outdoors. Consider a donation to Upper Missouri Waterkeeper to ensure our work of fighting the good fight defending the Missouri’s headwaters and fishable, swimmable, drinkable water in Montana.