Today, Upper Missouri Waterkeeper filed a legal petition to Michael Regan, Administrator of the U.S. Environmental Protection Agency (EPA).
The petition requests the agency exercise its oversight authority under the federal Clean Water Act to determine that changes to Montana’s water quality standards under Senate Bill 358 fail to protect Montana’s waterways and their uses, are unlawful, and to reinstate Montana’s science-based numeric nutrient standards.
In case you missed it, on April 30 Governor Gianforte signed Senate Bill 358 into law, violating the federal Clean Water Act and risking Montana’s world-class waterways. The State of Montana has acted in bad faith and it is now the responsibility of EPA to step in and force the State to be proactive – not reactive – in protecting our waterways from pollution.
SB 358 is a huge threat to Montana’s rivers and streams because it would allow more pollution into waterways, exacerbating the already troubling trend of widespread algal blooms and poor water quality. In doing so SB 358 violates requirements of our nation’s hallmark water pollution control law, the Clean Water Act, and EPA regulation.
First, under the Clean Water Act, 33 U.S.C. § 1313(c), EPA review and approval is required for any revisions to a state’s water quality standards before they are effective as a matter of law. Despite this important procedural requirement, SB 358 contains an immediate effective date whereby Montana rolled back science-based pollution standards and created new pollution control exemptions without EPA review or approval. The EPA is our federal backstop authority with the power and duty to ensure states faithfully implement clean water protections and to hold states accountable when they fail to protect clean water and local waterways, as Montana did with the passing of SB 358.
Secondly, revisions to state water quality standards can only be lawfully approved by EPA if they represent a sound, science-based approach to protecting waterway health and designated uses, including protecting and restoring fishable, swimmable, drinkable water. SB 358 is the opposite of a science-based, proven approach to protecting water quality: it eliminates science-based standards and expands polluter exemptions! The passage of SB 358 signals that Montana’s Legislature and Governor Gianforte care most about corporate bottom lines, politics, and letting major polluters off the hook from doing their share to protect our waterways.
The Clean Water Act contemplates strict deadlines for EPA action upon a State revising its water quality standards, generally 90 days or less. In our case EPA has known about the legal and practical issues of SB 358 since before Governor Gianforte’s signature on April 30, 2021, and therefore we’ve demanded EPA respond within 90 days of receipt of our petition for rulemaking. Our petition specifically requests EPA make several determinations about SB 358’s legality and, provided EPA agrees with the facts, requests that EPA void SB 358’s provisions as a matter of law and promulgate revised numeric nutrient criteria for Montana by rule.
Put another way, at the most basic level we’ve requested EPA determine whether Montana broke the law in repealing science-based pollution controls and expanding pollution exemptions and if EPA agrees, request the agency use its authority to void those unlawful sections and reinstate strong, science-based nutrient pollution standards.
While the petition is pending Upper Missouri Waterkeeper will be participating in the upcoming SB 358 Nutrient Work Group meetings to keep an eye on what, and how, Montana intends to address nutrient pollution meanwhile. Upper Missouri Waterkeeper is committed to the long-haul and ensuring EPA follows the law and best available science and reinstates numeric nutrient criteria that protect Montana’s waterways for generations to come.