State of Montana Moves Forward Implementing Senate Bill 358 in Violation of Federal Law

Montana Dept. of Environmental Quality Fails to Protect Helena’s Waterways While Proposing Unlawful City Wastewater Discharge Permit

The Montana Department of Environmental Quality (DEQ) continues to act in bad faith, implementing narrative nutrient pollution control standards in pollution permits after the Legislature and Governor Gianforte attempted to eliminate science-based numeric nutrient standards, contrary to federal law.

Despite communications by the Environmental Protection Agency, Region 8 to DEQ urging the application of still-binding numeric nutrient criteria and a pending legal petition by Upper Missouri Waterkeeper requesting the weakened, narrative nutrient pollution standards under Senate Bill 358 be declared void because they violate federal law, state regulators are still plowing forward implementing weak, narrative nutrient standards in the City of Helena’s wastewater permit renewal. As proposed, the permit’s renewal would put Prickly Pear Creek and downstream Lake Helena’s water quality at continued risk of nutrient pollution and algal blooms, and open the State to the potential for litigation.

“Montana DEQ is acting in bad faith, and it’s putting our clean water at risk. State regulators have been notified by the EPA regarding their legal duty to continue applying numeric nutrient criteria in pollution permit decisions, and DEQ also knows there is a legal petition pending before the EPA that, we believe, will determine Senate Bill 358 violates federal clean water law,” said Guy Alsentzer, Upper Missouri Waterkeeper Executive Director.

In late April, Governor Gianforte signed Senate Bill 358, repealing science-based numeric nutrient criteria that protect Montana’s waterways from degradation and directly violating the federal Clean Water Act. In response, on May 24, Upper Missouri Waterkeeper petitioned the EPA to disapprove of Montana’s changes to the State’s Water Quality Standards and requested the agency determine that Senate Bill 358 (SB 358) is unlawful and that the science-based numeric nutrient standards remain effective.

Under the federal Clean Water Action Section 303(c), the State of Montana is obligated to send revisions of its water quality standards to EPA for approval, and EPA is required to take action to approve, or to disapprove, those changes within 90 days. Until EPA affirmatively approves revised water quality standards, they are not effective as a matter of federal law and cannot be implemented in routine Clean Water Act programs such as processing pollution permits or waterway impairment designations.

Despite the fact that DEQ is actively conducting Nutrient Work Group Meetings aimed at implementing SB 358, and as seen in the City of Helena’s wastewater permit, actively implementing narrative nutrient standards pursuant to SB 358, the State has failed to formally submit those rules for EPA review and approval, and EPA has not yet responded to Waterkeeper’s petition requesting EPA disapprove SB 358’s revisions to water quality standards.

DEQ’s processing of pollution permits without applying EPA-approved numeric nutrient criteria opens the State to the prospect of new litigation and liability for violating its duty to faithfully apply requirements of the Clean Water Act.  Similarly, EPA’s continued failure to take action on Montana’s constructive submission of SB 358 raises the spectre of litigation for failure to perform its mandatory review duties, and so too will its failure to respond to Waterkeeper’s petition to disapprove SB 358 ripen into the prospect of litigation for unreasonable delay.

UMW formally submitted comments to DEQ regarding the inadequate analysis and unlawful conclusions supporting renewal of the City of Helena’s wastewater treatment plant discharge permit. The proposed permit does not contain any scientific basis supporting a conclusion that pollution discharges will not cause or contribute to violations of water quality standards and harmful pollution events like algal blooms, and fails to apply the mandatory, science-based numeric nutrient criteria to inform adequate pollution control strategies. The primary receiving waterways, Prickly Pear Creek and downstream Lake Helena, already suffer from long-standing nutrient pollution challenges, making DEQ’s failure to take a hard look at these issues, follow best available science, and require measures necessary to protect local water quality that much more egregious.

The comments, in part, state:

“DEQ cannot lawfully renew the permit as-proposed, and we request that DEQ withdraw the Permit and conduct the requisite pollution control and degradation analyses, including incorporating applicable numeric nutrient criteria, before offering this discharge permit again for public comment and decisionmaking.”

UMW also requested that EPA exercise its federal backstop authority to veto any final wastewater treatment permit unless the lawful, numeric criteria are applied.  Any DEQ pollution permit issued under the non-EPA approved, narrative nutrient standards of SB 358 raises the prospect of further litigation.