MT DEQ Fails to Apply Still Binding Numeric Nutrient Water Quality Standards
Recent reporting from the Daily Montanan exposed Montana Department of Environmental Quality’s (DEQ) attempt to move forward with wastewater treatment facility permit renewals for the cities of Helena, Manhattan, and Cut Bank. The renewals failed to implement Montana’s still binding numeric nutrient criteria, contrary to federal clean water law and DEQ’s memorandum of understanding with the Environmental Protection Agency (EPA). After Upper Missouri Waterkeeper notified the EPA of permit failures to implement numeric nutrient criteria and requested a veto, the agency took the extraordinary step of staying DEQ’s decisionmaking on while it reviewed the permits, resulting in DEQ ultimately pulling the permits in question.
Meanwhile, DEQ continues to plow forward with rulemaking under Senate Bill 358, which attempts to rollback numeric nutrient water quality protections across the state, falsely portraying narrative nutrient standards as the “law of the land” to the public.
“Despite instruction from the EPA to apply numeric nutrient criteria in its Clean Water Act decisions, Montana DEQ attempted to issue pollution permit renewals that clearly failed to apply mandatory numeric criteria, and has openly stated its intent to apply state law despite its conflict with federal pollution control law,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “It’s disheartening that Montana has gotten to a place where our natural resource agencies are failing to apply the law and adequately protect our waterways, communities, and clean water.”
Since the adoption of Senate Bill 358 into law on April 30, 2021, DEQ has been treating SB 358 as “law of the land,” despite blatant illegalities. The statute itself has an immediate effective date, however, any revision to state water quality standards is not effective as a matter of law unless and until EPA approves the revision, which in this case, has yet to occur. SB 358’s immediate effective date, the inadequate nature of narrative nutrient standards, and DEQ’s refusal to implement numeric nutrient criteria, are among the reasons Upper Missouri Waterkeeper submitted a legal petition to EPA in requesting the agency disapprove water quality standards proposed in SB 358 for violating the federal Clean Water Act.
Over a month ago, EPA sent DEQ an email stating that numeric nutrient criteria must be applied when issuing pollution permit renewals. Ignoring this directive, DEQ put forth pollution permit proposals that violate federal law by failing to explicitly apply numeric nutrient criteria and applying un-approved, ineffective narrative standards that threaten Montana’s world-class water resources.
Two weeks ago EPA reiterated the legally binding status of numeric nutrient criteria at a state Nutrient Workgroup Meeting, stating publicly that SB 358 is non-binding unless and until EPA approval. The Water Quality Division Administrator for DEQ responded that the department considers SB 358 effective law. DEQ is likewise communicating with its staff and programs the story that numeric nutrient criteria are no longer applicable, despite the fact that they are still legally binding.
“DEQ’s actions raise serious questions surrounding the department’s leadership, understanding, and willingness to follow the law, much less a commitment to protecting Montana’s clean water,” continued Upper Missouri Waterkeepers’ Alsentzer.
The conflict between DEQ’s approach to pollution permitting, pollution assessments, and the legal issues with SB 358 was heightened when Upper Missouri Waterkeeper submitted technical comments to DEQ opposing the issuance of the City of Helena’s wastewater treatment facility permit renewal, and asked EPA to veto any Montana Pollutant Discharge Elimination System (MPDES) permit that failed to incorporate numeric nutrient criteria. EPA answered Waterkeeper’s call and stayed DEQ’s final decision making on every MPDES permit. In response, and only after EPA exercised their authority to stay DEQ action finalizing permits pending their review, DEQ voluntarily pulled the offending pollution permits and confirmed they will not be finalized as proposed.
Upper Missouri Waterkeeper created frequently asked questions and answers on SB 358 and the rollback of water quality protections. The group continues to track and oppose illegal pollution permits and those that would do harm to our waterways, and ensure DEQ and EPA follow the federal Clean Water Act, implement science-based pollution control standards, and protect the health of Montana’s waterways.