Proposed Amendments to Nondegradation Rules Undermine Clean Water

As a result of the Senate Bill 285 clean water protection rollbacks passed during the 2023 Legislative Session, the Montana Department of Environmental Quality (DEQ) has proposed new rule changes to the Nondegradation of Water Quality and Mixing Zones in Surface and Ground Water rule. Upper Missouri Waterkeeper submitted technical comments to DEQ this week raising serious concerns with the proposed amendments. 

“The legislature is tying the department’s hands and limiting its ability to evaluate the potentially significant impacts of sprawl development on water quality,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “Sadly, these rule changes are politically driven, not based in science, and the exact opposite of what’s necessary to protect fishable, swimmable, drinkable water and community health in Montana.”

Up Ending the Apple Cart of Water Protections
Following much of the 2023 Legislature’s course of action, SB 285 directed DEQ to adopt new categorical exclusions for subsurface septic system discharges based on arbitrary, non-scientific setbacks and septic system elevation relative to waterways. As proposed, the rule changes would eliminate long-standing agency authority to evaluate cumulative impacts or synergistic effects of pollution discharges within the same subwatershed, evaluate evidence of existing water pollution and degradation, and make an informed decision about whether new pollution sources must undergo the more robust review under Nondegradation Policy. 

Conversely, the proposed rule upends the apple cart of water quality protection and fundamentally exempts many community-scale septic systems from agency review and approval, despite the reality that arbitrary watercourse setbacks do not magically equate to solving wastewater pollution or impacts on downstream rivers and water users. Fundamentally, the proposed rule changes incentivize growth at any cost and the use of septic systems while ignoring citizen’s fundamental constitutional rights to a “clean and healthful environment” and to “adequate remedies at law” capable of preventing unreasonable depletion and degradation.

Cumulative Impacts Ignored
Particularly concerning is the proposed rule revisions vast expansion of “categorical exclusions” for groundwater discharges related to new residential development. The rules would characterize a diverse array of wastewater discharges from new subdivision development as not only exempt from needing to obtain a discharge permit (a change made in a related rulemaking finalized in January 2024 which Waterkeeper opposed), but so too determine types of new development pollution discharges legally exempt from any analysis of their impacts, despite likely hydrologic connectivity to downgradient surface waters. Under the proposed rules the public would never receive notice, or have an opportunity to comment on potentially dozens, if not hundreds, of polluting septic systems being installed within the same subwatershed, because by law those systems would be determined “exempt” from review. Sadly, the proposed rules fail to contain substantial scientific evidence supporting the new categorical exemptions and favor a “development at any cost” mentality.

Politicalization of Clean Water
Legislative mandates such as this not only ignore scientific evidence and make protecting water quality a political issue, but they also do nothing to address the affordable housing crisis that’s affecting Montanans across the state. Instead, they open the floodgates for irresponsible land use and exacerbate the pollution problems impairing our waterways. In Montana, 35% of river miles are already impaired by nitrogen pollution (think of the neon-green algal blooms covering the mainstem Gallatin in July), yet these proposed rule updates walk backwards and turn a blind eye at new potential pollution sources. Now is a critical time to build resiliency as we face a new reality of warming temperatures (and water temperatures), but rather than take proactive measures to protect our most precious water resources, the state is burying its head in the sand.

Taken on the whole, the proposed rules represent a paradigm shift in water policy, where DEQ bends its knee to the development sector and continues a tradition of corporate-capture, where agency bureaucracy seemingly exists to benefit private, wealthy interests and political bully-pulpits, as opposed to defending the rights of citizens to a clean and healthful environment. Changing Montana’s water protection rules to sanction death-by-a-thousand cuts via new development pressure becomes, truly, a tragedy of the commons.