Today Upper Missouri Waterkeeper filed a lawsuit challenging the EPA’s February 2020 approval of a series of “Poison Pill” variance rules that undermine critical nutrient pollution controls for Montana waterways.
This lawsuit is the latest action we’ve taken to protect Montana’s rivers from unnecessary algal blooms and river pollution in Upper Missouri Waterkeeper’s longstanding Numeric Nutrient Variance Campaign. Our Numeric Nutrient Variance Campaign targets EPA’s 2015 & 2017 approvals of Montana’s Numeric Nutrient Rule Package, specifically its “nutrient variance rule,” which not only violate the federal Clean Water Act, but also undermines critical clean water protections for local Montana waterways, fisheries, and aquatic life by excusing more river pollution for decades.
Upper Missouri Waterkeeper focuses a good bit on Montana’s statewide rules controlling the amount of nutrients that point-sources are allowed to discharge into waters of the state because nutrients are the primary cause of eutrophication of surface waters, in which excess nutrients, usually nitrogen or phosphorus, stimulate algal growth and create poor water quality conditions that negatively affect aquatic life, recreation, and even fish population health.
As a headwaters state Montana has some of the best, high quality streams and wild fisheries in the Lower 48; these waterways and their aquatic communities are very sensitive to unnatural nutrient loading and can very quickly become degraded if strong pollution controls protecting their health are not in place and enforced. Enforcing strong science-based nutrient pollution rules also helps support Montana’s vibrant outdoors-based economy and countless local businesses across the state.
- Click here to read more about our work stopping the rollback of science-based nutrient pollution controls in Montana.
Today’s lawsuit specifically calls out EPA’s February 24, 2020 Action Letter where, among other things, EPA belatedly approved several sections of Montana code that automatically void – AKA, make null – our State’s strong science-based numeric water quality criteria for nitrogen and phosphorus. We term these automatic applicability provisions a “Poison Pill” because once their conditions are met the rules would remove Montana’s strong numeric water quality standards and essentially walk the State back two steps by removing best available science from the pollution permitting process.
- Click here to read the complaint filed today in the federal district court of Montana.
The legal issue at-hand is that EPA has approved a state law Poison Pill that undermines protections afforded Montana waterways via the federal Clean Water Act. EPA lacks the authority to approve state pollution control rules that circumvent the Clean Water Act’s purpose of supporting and protecting designated uses of our waterways such as fishing, swimming, and other sensitive uses. Montana’s Poison Pill rules act to automatically negate the lawfully-adopted scientific numeric nutrient criteria – which are necessary to protect Montana’s waterways from harmful algal blooms and nutrient degradation – now that both a federal court has struck down Montana’s general nutrient variance rule and EPA has disapproved Montana’s most recent general variance rules.
EPA’s February 24, 2020 Action Letter is the result of our summer 2019 federal court victory where Judge Morris agreed with Upper Missouri Waterkeeper that Montana and EPA’s use of open-ended nutrient variances, without any guarantee of actual compliance with science-based criteria in the future, is unlawful, and required the State of Montana to submit revised rules for EPA approval. Unfortunately, instead of submitting a revised rule package that puts protections for Montana waterways from nutrient pollution ahead of polluter exemptions, Montana submitted a bunk rule that changed nothing. EPA’s Action Letter represents an illegal attempt to excuse the State of Montana from implementing its strong science-based criteria in pollution permits while both EPA and Montana appeal our summer 2019 court victory to the 9th Circuit Court of Appeals.
Despite a robust body of science demonstrating Montana waterways are incredibly sensitive to nutrient pollution and, in most cases, the majority of waterways need less nutrient pollution entering them to remain clean and healthy, the reality is that many decisionmakers in Montana don’t want to enforce our pollution control rules and ensure everyone does their part to keep our waterways clean and healthy.
Upper Missouri Waterkeeper is committed to the long-play here: it is critical that Montana revise its approach to nutrient pollution and instead of emphasizing unlawful pollution exemption schemes, instead prioritize investments in clean water. The true wealth of Montana is our one of a kind headwater landscapes and our fishable, swimmable, drinkable water.
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- Upper Missouri Waterkeeper is the only non-profit conservation organization bird-dogging proposals that would harm our waterways, communities, and businesses throughout the entire 25,000 sq. miles of Montana’s Upper Missouri River Basin.
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