Lawsuit Challenging DEQ Approval of Invalid Pollution Permit

Today, Upper Missouri Waterkeeper filed a lawsuit in the First Judicial District of Montana, Lewis & Clark County, challenging the Montana Dept. of Environmental Quality’s (DEQ) decision to issue a wastewater discharge permit that doesn’t comply with the Montana Water Quality Act.

Read the complaint here.

As outlined in the complaint, DEQ has a mandatory duty to only issue pollution discharge permits that comply with the requirements of the Montana Water Quality Act, which in turn implements critical protections for water and communities in the federal Clean Water Act.

The root issue is DEQ’s decision to begin issuing wastewater discharge permits that rely on Montana’s recently adopted numeric nutrient rules – and give exemptions to polluters – when those rules have not been approved by the Environmental Protection Agency.

Read more about our efforts to ensure EPA does its job, reviews, and takes action on key water pollution rules in Montana here.

The rule package recognizes and implements, on one hand, strong science-based numeric limitations that will control eutrophication – which is to say over-fertilization – of Western Montana’s waterways.  The new numeric standards are meant to protect beneficial uses, e.g. being fishable, swimmable, of waterways, and are a good step forward for Montana!

Nutrient enrichment, or eutrophication, is the over-fertilization of surface waters by nitrogen and phosphorus, and is one of the leading causes of pollution of lakes, rivers, and coastal bays in the United States.  Nitrogen and phosphorus rank as some of the most common types of pollution in Montana’s flowing waters.  According to the DEQ, excess nitrogen and phosphorus levels account for 17% of all stream miles impaired by all forms of water pollution in Montana.

Nutrient enrichment can cause a host of negative ecological effects on streams and lakes, including loss of water clarity, proliferation of aquatic weeds, algae blooms, and drop-offs in dissolved oxygen (a critical factor for fish health and other aquatic life).

On the other hand, the rule package creates the opportunity for many nutrient polluters to receive variances, AKA exemptions, from meeting these stringent new standards.  Broad, long-term variances are two-steps backward for Montana.

In the permit challenged today DEQ authorized a 20 year variance for a facility that discharges approximately 24,500 gallons of nutrient-laden wastewater every day to a tributary of the Beaverhead River.

Creating strong nutrient pollution limits, but then exempting broad categories of polluters from compliance for extremely long periods of time, undermines the purpose of numeric nutrient rules.  Montana needs to ratchet down pollution controls to protect local water quality and fisheries, not kick the can down the road.

For this very reason the federal Clean Water Act requires EPA to approve new state water quality standards before they are used in permitting decisions.  This ensures sound governance as well as meaningful protections for local waterways and fisheries.

Read more about our efforts to improve Montana’s nutrient rule package here and build awareness about nutrient pollution’s impacts here.