Montana’s Rollback of Clean Water Protections Unscientific; Likely Illegal

Clearing the Water: What Montana’s Proposed Changes to Nutrient Standards Really Means

After another major story on Governor Gianforte Administration’s efforts to roll back clean water protections for polluting special interests, more questions were raised than answered. What has become abundantly clear is that neither the Gianforte Administration nor the Montana Department of Environmental Quality (DEQ) know a clear path forward that maintains protections for Montana’s water resources while adhering to the Clean Water Act. 

At issue is an DEQ rulemaking that, in place of Montana’s effective, science-based numeric limits on nutrient pollution, is proposing the adoption of an unproven, ambiguous, and open-ended regulatory framework focused on loosening pollution controls (and removing clear trigger points for recognizing the most common type of water pollution) for many of the State’s largest polluters. Currently, 35% of Montana’s river miles and 22% of lakes are already polluted by too much nutrient pollution according to DEQ’s own records. Despite ongoing and increasing degradation of our rivers, Governor Gianforte and Montana’s leading environmental agency is engaged in removing fundamental goal-posts that protect healthy rivers from pollution-driven neon-green algal blooms and weedy growths that are slowly but surely becoming the norm, not the exception.

Montana DEQ initiated the rulemaking process shortly after the politics-driven mandate from Senate Bill 358 passed and was signed into law during the 2021 Legislative Session. The rulemaking by DEQ is an attempt to implement the law’s rollbacks, which attempt to eliminate strong, science-based standards for river health, called ‘numeric nutrient criteria.’ Numeric nutrient criteria represent nonpartisan, science-driven limits for how much nitrogen and phosphorus most waterways in Montana can handle without becoming polluted and degraded. Montana’s conservation community and even the federal Environmental Protection Agency – which is legally required to review and approve the proposed rule – are on record opposing the pending DEQ rule because it lacks both a scientific and legal basis. 

Although DEQ initially opposed the Legislature’s consideration of Senate Bill 358, it has since flip-flopped to become one of the rollback’s largest supporters. During summer 2021, the agency even tried to approve several pollution permits without applying the still legally-binding numeric nutrient standards.  Those dubious pollution permits were only withdrawn for reconsideration after Waterkeeper raised the alarm to EPA, which led the EPA to formally request that DEQ halt its decisionmaking on the permits, a rare exercise of EPA authority.  DEQ’s explanations regarding the attempt to approve unlawful wastewater permits don’t pass the straight-face test: if anyone knows what legal standards apply to river pollution permits it should be DEQ.  

The stakes in this game of brinksmanship are getting higher by the day. DEQ has pushed back its rulemaking process by months, arguing that its working in good faith to provide more clarity, while ignoring the baseline reality that its nutrient pollution rule rollback is fundamentally at odds with science, with Montana citizen’s right to a ‘clean and healthful environment,’ with requirements of the federal Clean Water Act, and with Montanans’ clean water values.  

DEQ has increasingly touted the “flexibility” that its new rulemaking would bring to nutrient pollution management strategies, arguing that ‘adaptive management, partnerships with nonpoint sources, and water quality variances [permit exemptions]” will lead to better pollution control results.  These so-called solutions are not, in fact, solutions, but instead means of watering down and, in some cases, eliminating the strongest science-based river protection tools Montana already has on our toolbelt.    

What’s been absent from the recent news coverage is a meaningful discussion of the known risks of DEQ’s unprecedented pollution control rollbacks.  Eliminating proactive, science-based pollution controls represents a critical failure to protect local water quality in our streams, rivers, and lakes before pollution rears its ugly head.  The proposed rule rollback will, in effect, perpetuate ongoing algal blooms linked to unhealthy levels of nutrient pollution in Montana rivers, all of which directly harms our aquatic communities, wildlife populations, and western way of life.  While rolling back science based protections, DEQ has also been paying lip-service to controlling the known, negative water quality impacts of sprawl development or irresponsible fertilizer use by the agricultural sector, omissions that can only be attributed to a lack of political will.

Allowing continued, excessive nutrient pollution to our rivers and lakes also puts the second largest sector of Montana’s economy and the health of the waterways that attract visitors from around the world at risk. Further, by removing standards that determine whether a water body is polluted by nitrogen and phosphorus, the health of thousands of Montanans’ drinking water sources becomes that much more uncertain. Eliminating strong, science-based standards incentivize a ‘race to the bottom,’ where point source polluters (wastewater treatment plants, refineries, mines, sewage, and other direct discharges into water bodies) won’t be held accountable for the pollution they contribute to local waterways.

Montana was a national leader when it adopted numeric nutrient standards in 2014, yet now we’re the first in the country to remove strong, science-based nutrient standards that protect our rivers from algal blooms and inform when, where, and how to restore waterway health. In the face of climate change, warming water temperatures, variable snowpack and river flows, and persistent drought, Montana should be investing in proven strategies that build local resilience and protect the Golden Goose of cold, clean water, not unnecessarily threatening it with more pollution.