Montana Passes New Nutrient Standards for Surface Waters

After years of study and stakeholder engagement, this July 2014 the Montana Dept. of Environmental Protection and Board of Environmental Review  finalized and adopted a joint rule package concerning new water quality standards and implementing regulations, respectively, which revise limits on the allowable levels of nutrients in our state’s surface waters.

In brief, here’s our take on the new rules:

The Good: New, stringent rules that keep nutrient levels low in our waterways means we provide our families and children with a safe, unique, irreplaceable resource, protect our fisheries and that important economy, and secure our right as Montana citizen’s to clean, fishable, swimmable and drinkable water in the future. The standards adopted are very protective of water and are strongly grounded in science, and Upper Missouri Waterkeeper therefore strongly supports the new water quality standards as adopted.

The Bad: Unfortunately, the new nutrient standards are bundled with implementing regulations that provide for “variances,” a specific type of temporary exemption from compliance, which will be made available to nearly every type of nutrient discharger. In particular, both general (industry-wide) and individual variances will be available.

Variances are contemplated by the federal Clean Water Act, but historically have been intended for use in a very sparing manner, on a case-case basis. We agree that variances have a purpose in helping dischargers come into compliance in certain, limited circumstances (e.g. a tailings mine discharger in clean up activities). Now, that principle (limited, judicious use of variances) is being undermined by allowing not only individual variances but general, categorical variances that require very little vetting in order for a discharger to obtain such coverage.

Therefore as a legal decision we disagree strongly with the availability of general variances as we don’t believe such use is contemplated by the federal Clean Water Act. Further, as a policy decision, general variances are ripe for abuse by industries and dischargers who – if they didn’t have the option of postponing compliance – could come very close to meeting the technological treatment standards mandated by the new nutrient water quality standards. After all, the purpose of the Clean Water Act is in part to be action forcing, which is to say to mandate dischargers continuously update their treatment towards the Act’s end goal of zero discharge. Allowing general variances circumvents that policy rationale.

The Ugly: You’ve heard now that while the science informing new, stringent nutrient water quality standards is good, our decisionmakers also created a big loophole. Sadly, the loophole is pretty darn big; variances from compliance with the new water quality standards can last as long as 20 years and be renewed! Compare this to the normal variance term of 3 years, and to typical discharger permit terms of 5 years; Montana’s variance rules create a potentially dangerous off-ramp from compliance with the Clean Water Act that threatens the good work decisionmakers did in recognizing – and adopting – standards based on strong science.

The Latest: Although Montana is a delegated state that has authority to implement the federal Clean Water Act, variances are special types of exemptions that – in addition to state agency approval – also require federal approval from our regional EPA office. This is where the ball currently rests: Montana’s DEQ and BER have passed their respective portions of the new, nutrient rules package and we now await EPA Region 8’s review.

Upper Missouri Waterkeeper will continue our strong advocacy and engagement in this issue as the outcome will have huge, long-standing ramifications for Southwest and West-Centra Montana’s communities and waterways. As always, our actions will be guided by strong science, the law, and a good dash of Montana common-sense. Stay tuned!

Read an Op-Ed the Helena Independent Reporter published on our support of the state’s new, strong science behind its nutrient rules.

Read the BER and DEQ’s Numeric Water Quality Standards and Variances Rule Package as Adopted.