Lawsuit Challenges EPA Approval of Weak Montana Pollution Rule

Earlier today Upper Missouri Waterkeeper sued the Environmental Protection Agency (EPA) over its approval of Montana’s weak, so-called ‘variance standards’ for nitrogen and phosphorus pollution.

These variance standards displace strong, science-based pollution limits Montana earlier found necessary to protect waterways and fisheries.

Click here to view the complaint.  Click here to read our Press Release.

[highlight] The lawsuit targets EPA’s recent approval of Montana’s Numeric Nutrient Rule Package, specifically its “nutrient variance rule,” which not only violates the federal Clean Water Act, but also undermines critical clean water protections for local waterways, fisheries, and aquatic life by excusing more river pollution for decades. [/highlight]

The Issue

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 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 is in effect a replacement of the science-based water quality standards for these pollutants.  The ‘variance’ rule supplants the numeric, scientific limits with weaker, less-protective limits.  Contrary to the requirements of the Clean Water Act, the variance or ‘replacement’ standard is based solely on non-water quality considerations, not on what is needed to protect and maintain healthy rivers and fisheries.

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 so-called variance rule, those protections are wholly negated.  The variance rule represents two steps backward for our state because it exempts nearly every major wastewater discharger in the state – from the largest to the smallest, and even private polluters like mines – from meeting science-based pollution limits for 20 year periods of time.

Put another way, Montana adopted good, science-based limits on nutrient pollution, but then decided to give most polluters a free pass from complying with those limits.

The following points outline key legal, economic, and practical problems in Montana’s nutrient variance rule:

  • Politics Before Clean Water – It represents the political choice of the Montana legislature in prioritizing money above clean water and healthy rivers.   Big industry and big cities that should clean up their pollution can, instead, unfairly degrade a critical public trust resource and threaten our state’s outdoors-based economy, all while using the variance rule’s inapposite impact on small communities as an excuse for not doing their part.
  • Circumvents Clean Water Law
    • The law requires water quality standards to be scientifically-based and to protect all designated uses of water – in Montana that means protecting water for fishing, swimming, drinking, agriculture, wildlife and other recreational uses.  While the numeric criteria meets those requirements, the so-called variance rule does not.
    • The variance rule is not a proper water quality standard.  It allows new and existing polluting facilities – like industrial mines, refineries, and big cities – to meet much weaker pollution requirements than dictated by the science behind the numeric nutrient standards.
    • Effectively allows cost – not science – to become the basis for a water quality standard.  The Clean Water Act requires protection of water and people, not profits.
    • The variance rule sets arbitrary, weaker pollution limits for nearly all categories of dischargers and on nearly all waterways across the state, without case-by-case analysis or any assurance that the more protective limits could not be met in a timely manner.
    • It authorizes 20-year variance terms: that’s 4x longer than a typical pollution permit’s 5-year life, much less the intended 3-year life of a typical variance, and as such represents a pollution exemption for a generation!
    • Is unenforceable. Montana’s numeric variances will not, contrary to the state and EPA’s claims, become progressively more stringent.  Rather, a variance will only change if Montana polluters decide that meeting the protective numeric standard becomes cheap enough.
  • Flawed Study – The variance rule is based on a very broad review of nutrient treatment standards, lacking in detail, and was geared from the start towards reaching a particular result: namely, rationalizing the weaker replacement standard.  The review failed to consider alternative treatment technologies capable of pollutant reductions, and generalizes economic impacts across the state and across polluting sectors.  Big industry and big cities are not the same economic or pollution-contribution posturers as small towns and therefore should not be lumped together.

“Montana’s nutrient variance rule is simply a way to let almost every nutrient discharger in the state off the hook for complying with Clean Water Act requirements to reduce nitrogen and phosphorus pollution in Montana’s rivers and streams,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “The whole point – and legal requirement – behind adopting numeric nutrient standards is to have strong, defensible, scientific limits that support and protect fishable, swimmable rivers and streams.  The nutrient variance rule throws a proven, scientific approach to addressing one of Montana’s biggest water pollution issues out the window.”

The Science

Nutrient pollutants are phosphorus and nitrogen.  Nutrient pollutants act as hyper-fertilizer in Montana’s surface waters, causing and contributing to the growth of harmful and unnatural levels of algae blooms, bacteria, and nuisance plant growth, all of which degrade local water quality and threaten Montana’s fisheries, aquatic life, and the important outdoors economy our rivers support.  In fact, according to Montana’s 2014 Integrated Report, excess nitrogen and phosphorus account for nearly twenty percent of all stream miles impaired by all forms of water pollution in Montana.

Nuisance algae on the Beaverhead River

Nitrogen and phosphorus are commonly discharged to waterways from a variety of point-sources, ranging from big industry and refineries, to mines, to city wastewater treatment facilities.  These pollutants also come from unregulated non point-sources such as county land use sprawl and septic systems, fertilizer from farming, livestock operations, degraded riparian zones and golf courses.

The state of Montana must take the necessary, science-based steps to reduce nutrient pollution in surface waters and not allow it to get worse.  To do any less not only sacrifices citizens’ rights to fishable, swimmable water, but also undermines the foundation of our state’s outdoors-based economy and countless communities’ and businesses’ investment in keeping Montana the Last, Best Place.

The Law

EPA has a mandatory duty to watchdog new or amended state water quality standards to ensure they represent sound science and protect designated uses of waterways – uses like swimming, fishing, and aquatic life.

Recognizing the widespread threat nutrient pollution posed to its rivers and aquatic life, Montana finally took the step of creating numeric water quality standards for nitrogen and phosphorus to better protect Montana’s waters.  In turn, those limits are to inform the pollution permitting process and allow better decisionmaking on what type of nutrient reductions are necessary from polluters that are point sources (that is non-agricultural) to protect local water resources.  Unfortunately for Montanans, somewhere along the nearly decade-long timeline of developing these strong new standards, politics subverted the process.

Under pressure from industry and big cities the Montana DEQ and 2013 legislature proposed the replacement “variance” rule alongside the numeric nutrient limits, rendering the latter a largely symbolic gesture towards protecting local streams, rivers, and fisheries from nutrient pollution.  The variance rule is, plain and simple, a tool to weaken the numeric nutrient standards.  The entire basis behind the variance rule is money politics; specifically, private industry and big cities don’t want to pay to upgrade their polluting wastewater facilities.

Indeed, Montana’s numeric nutrient rule package has, as do most pollution control rules, an 800-pound gorilla.  Here, the 800-pound gorilla is the role of cost or the unwillingness of sectors to pay for clean water.  The Clean Water Act does not allow EPA to approve a state’s proposed water quality standards when they are based solely on what polluters want to pay, as opposed to what science says is necessary to ensure water is clean and supports uses like drinking, swimming, fishing and aquatic life.

Montana’s numeric standards for nitrogen and phosphorus represent a science-based limit protecting most waterways from the negative effects of nutrient pollution.  A water quality standard (WQS) defines the water quality goals of a waterbody, or portion thereof, by designating the use or uses to be made of the water, by setting criteria necessary to protect the uses, and by preventing degradation of water quality through anti degradation provisions.

States are required to adopt WQS to protect public health or welfare, enhance the quality of water, and serve the purposes of the Clean Water Act.  Costs and what a polluter is willing to pay is not part of that standards-setting process.

In very limited circumstances, not the case here, EPA can consider a constrained, time-limited variance for very specific reasons, proven by the polluter with real and specific evidence.  In some of those instances cost can be a consideration, but again, that is not what the state was required to do here in setting numeric nutrient standards.

The state of Montana and EPA have contorted and grossly expanded a very limited regulatory mechanism, and in the process latched onto a “cost” concept as an off-ramp from applying the science-based numeric nutrient criteria necessary to protect Montana’s waterways.

The result will be delayed – if any – measurable progress in restoring waterways polluted by nutrients – whether the mainstem Missouri downstream from Helena or the E. Gallatin downstream from Bozeman – and inadequate protections for other key waterways that support drinking water supplies, jobs, and favorite pastimes.  At the most extreme, Montana’s variance rule may make nutrient pollution worse by failing to restrict pollutant loading, thereby exacerbating nitrogen and phosphorus’ cumulative impacts, as these pollutants can build up in waterways over time and cause problems for years down the road.

The Solution

What should we do now?  Simple.  We need to make excess nutrient pollution less common in Montana’s waterways.  How do we do that?  Also simple.

Politicians, community leaders, and business leaders need to be less cynical about environmental regulations and protections.  These laws are not red tape.  Environmental laws work because they protect your rights to safely swim, drink, and fish your waterways.  Without their protections there are consequences.  You lose the things you love most about living on, near, or using your favorite waterway.  The joy you get from swimming on a hot summer day or casting flies during a caddis hatch can be lost if we don’t keep pollutants out of the water.

Our public officials need to enforce our environmental protections.  Our public officials need to properly enforce environmental laws that safeguard waterways instead of creating exemption schemes for powerful interest groups.  There is no right to pollute Montana’s waterways.  While industry, cities, and business may need time to reduce pollution discharges, such reductions must occur in a transparent, accountable, enforceable manner according to law.

Montana’s communities, vibrant culture, and growing recreational economy are predicated in large part on clean, readily available water.  Our decisionmakers must use science and common sense and take the necessary steps to responsibly manage our landscapes, water resources, and pollution so that Montana’s future generations grow up with healthy rivers, fisheries, and landscapes.