Narrative Standards Set Forth in Senate Bill 358 Remain Unapproved by Federal Oversight Agency
Today, Upper Missouri Waterkeeper filed a Notice of Intent to Sue to the Environmental Protection Agency (EPA) for its failure to comply with its mandatory duty to approve or disapprove changes to a state’s water quality standards under the Clean Water Act (CWA) Section 303(c)(3), 33 U.S.C. § 1313(c)(3). The agency has yet to review and act on the roll back of Montana’s water quality protections through the passage of Senate Bill 358 (SB 358) last April.
“EPA cannot stand by and watch Montana implement water quality standards that violate federal clean water law and, ultimately, fail to protect Montana’s world-class waterways from nutrient pollution” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “This Notice is about holding EPA accountable for the administration of the Clean Water Act when states, like Montana, go it alone in an attempt to appease polluting special interests. It’s contrary to both the law and well established, science based, best-practices that protect our waterways from degradation.”
Prior to Governor Gianforte’s signature on SB 358, Upper Missouri Waterkeeper alerted EPA of the pending rollback of protections within the legislation and the likelihood that the unlawful bill would pass and be signed into law. Additionally, on May 24, Waterkeeper provided EPA with the finalized legislative action and formal notice that the standards had been revised, which should have prompted EPA to act. Waterkeeper also filed a formal rulemaking petition to the EPA, documenting the unlawful and unscientific nature of SB 358’s revisions to Montana’s water quality standards and requesting that EPA step in, declare the rules contrary to the federal Clean Water Act, and reimpose strong, science-based numeric nutrient criteria.
As of today, EPA has failed to act to approve or disapprove Montana’s legislative revisions to its water quality standards formalized on April 30, 2021, and therefore EPA is in violation of its mandatory statutory deadline. The CWA requires EPA to review and approve state revisions to water quality standards within 60 days before they can be effective. In direct conflict with the CWA’s mandates, SB 358 made narrative nutrient standards immediately effective under state law once Governor Gianforte signed SB 358. Despite the stark conflict between federal and state law and rampant confusion undermining regulatory clarity and the lawful performance of pollution permit, waterway assessment, and water resources planning duties, the EPA has still failed to act.
Similarly, within 30 days of the passage of SB 358, the State of Montana was to submit its revised standards to EPA for review before implementing any changes, an action the state has failed to perform. The state agency already attempted to apply the weaker narrative water quality standards to a pollution permit application from the City of Helena during summer 2021. DEQ’s actions indicated it had every intention of applying SB 358’s state law directive and using weaker, narrative nutrient standards for permit decisions like the City of Helena’s wastewater discharge, a plan that was only foiled after Waterkeeper exposed the permit application and brought it to EPA’s attention, forcing it to be withdrawn.
It’s hard to overstate the importance of ensuring the continued use of numeric nutrient standards for Montana waterways. Numeric nutrient criteria are clear, nonpartisan means proven to be the most effective manner for limiting harmful pollution discharges to waterways, to identifying waterway degradation, and to judging restoration effectiveness. In fact, for over two decades EPA has emphasized the importance of developing and implementing numeric nutrient water quality criteria to protect local waterways from harmful nutrient pollution. In 2015, Montana became a national leader by adopting protective, science-based numeric criteria for both nitrogen and phosphorus after finding that narrative criteria were inadequate to protect designated uses of Montana’s waters (drinking water, fishing, swimming, etc).
Unfortunately, during the 2021 session, the Montana legislature adopted SB 358 as state law under 75-5-321 MCA, wholly repealing Montana’s numeric nutrient criteria and directing the Montana Department of Environmental Quality (DEQ) to adopt weaker, more ambiguous and subjective narrative nutrient criteria despite an exhaustive body of scientific evidence showing that narrative standards are not protective of Montana’s world-class water resources. SB 358 also mandated the creation and unprecedented use of new exemptions for nutrient pollution from traditional, science-based pollution permit requirements.
Today’s 60-Day Notice of Intent to Sue sends a clear message that EPA must follow the law and exercise its authority to take formal action on Montana’s unscientific rollback of clean water protections.