Legal Clarification on SB 358 Rulemaking Still Absent
On Monday, May 9, 2021 Upper Missouri Waterkeeper, Montana Environmental Information Center, Montana Trout Unlimited, Clark Fork Coalition, and Gallatin River Task Force submitted a letter to Montana Department of Environmental Quality’s (DEQ) Director Dorrington identifying critical flaws in the Senate Bill 358 (SB 358) rulemaking process and the resulting New Rule 2.
The letter asks DEQ to submit SB 358 and New Rule 1 to the Environmental Protection Agency (EPA) for approval or denial as revisions of state water quality standards, and requests DEQ develop the scientific basis for a nutrient Best Management Practices (BMP) manual and associated verification procedures capable of informing and guiding a transparent, defensible, and practicable Adaptive Management Program.
“Stakeholders in the Nutrient Work Group have been spinning our wheels trying to navigate a rulemaking process without necessary legal clarity. It benefits no one, let alone water quality, aquatic health, or taxpayers’ pocket books, to needlessly prolong confusion around applicable pollution control requirements at law,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “It’s past time for the DEQ to formally submit the revisions to Montana’s water quality standards through SB 358 to EPA and seek clarity on a practical and legal path forward that will best protect water quality from nutrient pollution.”
For the last nine months, as directed by SB 358, DEQ’s advisory Nutrient Working Group (NWG), which the letter’s signatories are involved in as official stakeholders, has invested significant time, resources, and taxpayer dollars into guiding DEQ’s development of new rules for controlling and reducing nutrient pollution affecting Montana’s waterways. However, the NWG and New Rule 1 and New Rule 2 have proceeded without clarity on the legality of the rulemaking’s fundamental objectives – eliminating numeric nutrient criteria, prioritizing phosphorus reductions over nitrogen, and implementing adaptive management policies for non point source pollution – undermining the rulemaking processes’ credibility and bringing into stark relief its conflict with requirements of the federal Clean Water Act (CWA).
The coalition’s letter to DEQ states, in part:
We are sending you this letter to express our grave concerns with the current status and development of New Rule 2 and its associated Adaptive Management Program (AMP) pursuant to Senate Bill 358 (SB 358) and to request that you, as the Director, exercise your authority to address two critical, outstanding issues of this rulemaking.
First, we request that you immediately submit SB 358 and New Rule 1 to the Environmental Protection Agency (EPA) as revisions to Montana’s water quality standards.
Second, we request that you direct your staff to develop the necessary scientific basis for a nutrient Best Management Practices (BMP) manual and associated verification procedures capable of informing and guiding a transparent, defensible, and practicable Adaptive Management Program.
The Environmental Protection Agency (EPA) is on record expressing strikingly similar concerns with the rulemaking process, as noted in a October 15, 2021 letter and April 8, 2022 letter to DEQ. Both of EPA’s letters to DEQ identify fundamental flaws in the proposed rule framework that fail to comply with requirements of the Clean Water Act, representing likely grounds on which EPA could deny Senate Bill 358’s revisions to water quality standards.
To date, DEQ has implemented SB 358 by adopting revisions that expand categories of nonsignificant nutrient discharges for MPDES permittees and published New Rule 1, which outlines the rule framework. DEQ is presently working on the counterpart, New Rule 2, despite the fact that all of these rulemakings pursuant to SB 358 have not been formally reviewed and acted upon by the EPA. To remedy this disconnect and create clarity the Coalition Letter urges DEQ to submit SB 358 and New Rule 1 to EPA for consideration.
The failure of DEQ to resolve a fundamental question of whether SB 358’s premise – eliminating numeric nutrient criteria and prioritizing unscientific permitting considerations – is lawful has wasted enormous amounts of time and resources and led to an opaque process mired in controversy. Conservation groups are requesting these basic legal questions be answered before the rulemaking of New Rule 2 is finalized.
The agenda for the upcoming Nutrient Work Group meeting scheduled for May 11 continues to lack any of the detail necessary to understanding how New Rule 2’s adaptive management program requirements will unfold, much less any explanation of how the AMP or New Rule 2’s proposed language complies with mandatory requirements of the federal Clean Water Act.