Fixing Montana’s Nondegradation Policy

Our nation’s hallmark water protection law, the Clean Water Act (CWA), lays the legal framework for states to implement clean water protections for local streams, wetlands, lakes, and even our drinking water supplies.  A key part of each state’s CWA program is called the Antidegradation Policy (nondegradation in Montana), which applies in each permit-based decision considering any proposed pollution discharge that could affect a surface water.

The purpose of Nondegradation Policy in pollution permit decisions is to protect what’s clean and ensure we don’t make degraded water challenges worse, all towards ensuring our rivers, streams, and lakes remain healthy and able to support the wide diversity of human and aquatic communities that depend on them.

Sadly, Montana’s Nondegradation Policy is poorly written in many regards, allowing more pollution to more waterways than science requires, and therefore it needs reform.

Below is a summary of key problems in Montana’s Nondegradation Policy:

  1. The CWA and antidegradation policy do not authorize Montana’s broad use of categorical exemptions Before exempting a pollution discharge from review and limitations, states should verify that the discharge is insignificant by performing a fact-based analysis of the proposed discharge and health of the receiving waterway. Montana’s categorical exemptions do the opposite by categorically exempting some discharge activities without fact-based analyses or written findings, thus allowing significant degradation to occur without proper scientific review.
  2. Montana’s procedures for adopting categorical exemptions contradict the CWA Montana’s legislative and administrative methods for adopting categorical exemptions ignore public participation requirements. The CWA requires states to hold public hearings to review, modify, or adopt Water Quality Standards (WQS), yet Montana omits public participation opportunities related to decisions involving categorical exemptions under nondegradation rules. The public has a right to be involved in decisions about the State’s natural resources and especially in pollution permit decisions.
  3. Montana compromises protections for deserving, outstanding resource waters (ORW) by exposing the State’s most precious waters to permanent degradation – The CWA allows states the ability to designate ORWs due to exceptional quality or ecological, recreational, or other significance. An ORW receives the highest level of water quality protection, ensuring water quality is maintained and protected. Montana, however, undermines these protections by exempting polluting activities that cause permanent degradation, diminishing the scope of protections for ORWs below the minimum required under federal law.
  4. Montana’s procedures for designating ORWs are so burdensome that the State has never granted a petition to protect these types of critical waters – ORW petition rules in Montana impose significant economic costs on petitioners, allow politicians to deny deserving petitions regardless of scientific or public opinion, and improperly require cost-benefit analyses. Conversely, federal antidegradation policy simply states that a waterway qualifies as an ORW if it’s exceptional quality or ecological or recreational value warrants protection against degrading discharges. The inclusion of social and economic factors in the ORW designation process unrelated to the quality and value of a waterway is unacceptable and chills the public’s ability to offer meaningful protections to some of the most vulnerable and ecologically significant waterways in Montana.

Upper Missouri Waterkeeper is committed to using a variety of strategies to fix these deficiencies in Montana’s Nondegradation Policy so that we can maintain and protect water quality for some of the Lower 48’s last, best waterways.