Federal Oversight Agency Has Yet To Address Unlawful Rollbacks of Water Quality Standards
Today, March 24, 2022, Upper Missouri Waterkeeper filed a complaint against the U.S. Environmental Protection Agency (EPA) for failure to perform its mandatory duty under the Clean Water Act (CWA) to approve or disapprove revisions to Montana’s water quality standards, and for unreasonably delaying action on Waterkeeper’s May 2021 EPA Petition for Rulemaking. The Petition for Rulemaking provided formal notice of the unlawful nature of Senate Bill 358 from the 2021 Legislature and requested the agency determine that revisions to Montana’s water quality standards under Senate Bill 358 violate the federal CWA and fail to adequately protect the clean water, waterways, and designated uses.
“Montana’s unlawful passage of polluter-driven Senate Bill 358 is the exact reason why EPA holds authority as the ultimate backstop under the federal law to protect clean water,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “Under the Clean Water Act, states can’t lawfully roll back science-based standards that protect waterway health – as Montana has done – and put forth unproven and ineffective pollution control programs that let polluters off the hook for doing their fair share to protect water quality. Ignoring best available science and creating new exemption schemes from pollution control is wrong, illegal, and dirty; it’s the EPA’s duty to ensure our state is adequately protecting our clean water resources. This lawsuit calls on EPA to do its job and ensure the state of Montana follows the law and uses science, not political whims, to safeguard the public’s right to fishable, swimmable, drinkable water and healthy rivers.
Senate Bill 358, which was signed into law on April 30, 2021, by Governor Gianforte and by its plain language repeals numeric criteria for nutrient pollution control and reverts the state back to a general narrative standard. In practice SB 358 replaces protective, science-based numeric water quality criteria – which are necessary to protect river health and uses of water – with less-protective, subjective narrative water quality standards. Both the state and EPA determined more than a decade ago that narrative standards were inadequate to protect waterways from degradation, yet SB 358 still pushes the state two steps backward in protecting local waterway health.
SB 358 also categorically exempts nutrient discharges from existing and new polluting operations and activities more broadly than is allowed under federal law, contradicting EPA’s guidance and regulations by allowing increased volumes of harmful nutrient pollution to our waterways without regard to site specific conditions or safeguards to assure waterway health. Lastly, SB 358 requires the DEQ to implement a novel Adaptive Management Program for nutrient pollution, driven by a new set of rules based on political and economic considerations, not on what’s necessary to protect local water resources health. As the publication of New Rule 1 (the first of two rulemakings implementing SB 358) in early March 2022 showed, DEQ’s implementing rules for SB 358 are untethered to mandatory clean water protection requirements, fail to use best available science, and will incentivize a race to the bottom for local water quality.
Nearly 11 months have passed since Senate Bill 358 was signed into law, which included an immediate effective date for using narrative nutrient standards to control nutrient pollution, yet the EPA has yet to approve or disapprove Montana’s revised water quality standards despite the statutory deadline. The federal CWA, section 303(c)(3), 33 U.S.C. § 1313(c)(3), requires the EPA to act on revisions to water quality standards within 60 days if approving the new standards, or within 90 days if the revisions fail to meet the requirements and require changes.
In response to the passage of Senate Bill 358, Upper Missouri Waterkeeper filed a petition in May 2021 under 5 U.S.C. §§ 553(e) and 555(e) of the Administrative Procedures Act, requesting the EPA exercise its statutory authority and disapprove Montana’s repeal of numeric water quality standards and determine corresponding revisions to nutrient pollution control requirements don’t pass muster. Despite having full notice of these legal issues and actually participating in Montana’s nutrient rulemakings over the past 9 months, the EPA has still unlawfully withheld action and failed to respond to Waterkeeper’s petition.
For these reasons and because nutrient pollution continues to be a leading cause of waterway degradation across the state, Upper Missouri Waterkeeper filed a Notice of Intent to Sue to the EPA last December 2021. Instead of coming to the table and agreeing to take action as required by law, the EPA has continued to sit on its hands.
Meanwhile, Montana DEQ continues to move forward with rulemaking for its nutrient Adaptive Management Plan despite the lack of any approval from the EPA, and has even begun to apply the unapproved, less protective narrative standards in pollution permit decisions. Several CWA permits for large nutrient polluters have not been renewed, allowing dischargers to continue operating under expired permits that do not use numeric nutrient effluent limits or adequately protect local quality. In short, the control of nutrient pollution in Montana has become a game of brinksmanship where, sadly, our iconic waterways suffer all the consequences. It’s past time for the EPA to step in and take action on Montana’s unscientific rollback of clean water protections.
Upper Missouri Waterkeeper is dedicated to protecting and improving fishable, swimmable, drinkable water throughout the 25,000 square miles of Montana’s Upper Missouri River Basin.