Today we sent EPA a Notice of Intent to Sue (NOI) under the federal Clean Water Act for failure to approve or disapprove Montana’s numeric nutrient water quality standards.
The issue is simple: EPA has a duty to review a state’s revisions of water quality standards within 60-90 days from submittal. This duty is mandatory. When EPA fails follow its rules and review state submissions, important clean water protections are put at risk and local water quality and fisheries health is threatened. Filing our Notice of Intent to Sue is intended to prompt our government to do its job, review Montana’s rules, and approve or disapprove, to ensure we have strong, meaningful clean water protections that comply with federal law and protect Montana’s special waterways, fisheries, and communities.
Water Quality Standards
Development and implementation of water quality standards (WQS) are critical components of the Clean Water Act, with shared roles for states and EPA. The Clean Water Act imposes an initial obligation on states to develop water quality standards as necessary to protect designated uses of each state’s waters.
States must designate uses, which are the uses that existed in 1974 or better if waters have improved. Those standards are to be submitted to EPA for approval. If a state fails to develop adequately-protective standards, the Clean Water Act requires EPA to step in and develop the standards. States are also required to adopt and implement meaningful antidegradation protections to ensure that waters that are meeting water quality standards are not allowed to degrade and that high quality waters (water quality that is better than standards) retain their high quality.
A state must, not less than once every three years, hold public hearings for the purpose of reviewing applicable water quality standards and, where appropriate and necessary to meeting the requirements of the Clean Water Act, modify and adopt new standards. Again, EPA is to review and approve new or revised water quality standards from a state; EPA has 60 days from submittal of a state’s water quality standards to approve, or 90 days to disapprove. EPA’s review duty is mandatory with a binding timeline.
When a state’s standards don’t stay abreast of scientific and technical developments or ensure protection of water, EPA must and can step in and develop appropriately-protective standards for the state. With these requirements, one sees the “forward motion” for water quality that is dictated by the Clean Water Act: set standards for water quality that will dictate effective cleanup and set antidegradation requirements to preserve what is already clean.
Montana’s Numeric Nutrient Water Quality Standards
Various forms of nitrogen and phosphorus rank as the 4th, 8th, 10th, and 12th most common types of pollution in Montana’s flowing waters. In fact, excess nitrogen and phosphorus levels account for 17% of all stream miles impaired by all forms of water pollution in Montana. Montana’s new nutrient standards will help control the undesirable effects of eutrophication. Eutrophication is the enrichment of a waterbody (e.g., a stream or lake) by nitrogen and phosphorus, which leads to increased plant and algae growth and decay and all the consequential changes to the water quality that occur as a result.
Prior to the numeric nutrient rule package, Montana did not have numeric water quality standards addressing eutrophication except on the Clark Fork River. Therefore, in most cases, permit limits (including waste load allocations determined in Total Maximum Daily Loads, i.e. TMDLs) were based upon a narrative water quality standard. The narrative standard prohibits substances in water that “create conditions which produce undesirable aquatic life” (ARM 17.30.637[e]). Translating the narrative standard into enforceable permit limits on a case-by-case basis was time-consuming and controversial to due subjectivity, and sometimes resulted in inconsistent or differing permit limits that failed to adequately protect local water quality. Montana’s numeric nutrient standards were drafted to stop this uncertainty and use sound science to implement defensible, sound limits on nutrient pollution in waterways.
As for Montana’s recently adopted new numeric nutrient water quality standards; overall these rules are a step in the right direction for better protecting Montana’s waterway health. However, Montana’s numeric nutrient standards contain novel implementation policies that provide polluters broad exemptions from compliance. These exemptions, called variances, are traditionally used only on a site-specific basis, for short amounts of time, and on a sparing basis. Montana’s new rules, however, contemplate sector-wide coverage, 15-20 year compliance terms – as opposed to 3-5 year terms, and general coverage for nearly all dischargers of nutrients.
Coming full circle, EPA has failed to take any action on Montana’s rule numeric nutrient rule package within its mandatory 60-90 day timeframe.
EPA must take action on Montana’s new nutrient standards to fulfill the Clean Water Act’s procedural safeguards – safeguards that mandate EPA review in order to ensure state standards are sufficiently protective and in compliance with law. More practically, EPA must take action because Montana is already incorporating its new standards in permitting decisions which affect local water quality. While EPA fails to act, Montana discharge permits are being written that allow industrial, business, municipal and other dischargers the right to continue discharging current levels of pollution without guarantees of near-term pollution reduction. Many of Montana’s waterways already suffer from excess nutrient loading – it is vital to the protection of our river’s long-term health that we not only have good, science-based rules, but rules that are enforceable and provide near-term reductions in pollution.
Thus it is critical that EPA fulfill its mandatory oversight role and take action on Montana’s rule package and approve or disapprove. In so doing, EPA will provide needed regulatory clarity on what constitutes sufficient science-based water protections for Montana, its citizens, and its waterways.