Victory! EPA Disapproves Core Sections of Montana’s Water Quality Rollback at Waterkeeper

State of Montana Held Accountable for Rolling Back Science-Based Water Quality Standards

On Tuesday, May 10, 2022, the Environmental Protection Agency (EPA) sent the Montana Department of Environmental Quality (DEQ) a letter disapproving core sections of Senate Bill 358 (SB 358) after Upper Missouri Waterkeeper filed a lawsuit against the EPA in March 2022 for its failure to take action on rollbacks to Montana’s water quality standards put forth in SB 358. 

“The State of Montana and special interests were rightfully rebuffed by the EPA for failing to use best available science and adhere to the law. Waterkeeper warned Gov. Gianforte and the DEQ that rolling back clean water protections was contrary to federal clean water law and science-based standards, and an egregious disservice to Montanans and our world-class waterways,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “EPA’s belated action this week serves as an important reminder that Montana’s unique water resources are very much worth protecting, and that science – not politics – must guide pollution control efforts.”

On Monday, May 9th 2022, Upper Missouri Waterkeeper and a coalition of conservation groups submitted a letter to DEQ Director Dorrington reiterating concerns over SB 358 rulemaking and requesting the agency follow the mandatory procedures outlined in the Clean Water Act. As of Monday, DEQ had yet to address the coalition’s concerns nor submitted SB 358 and New Rule 1 to the EPA as requested. 

Then, at the May 11th Nutrient Working Group meeting, and after nearly a year of divisive nutrient rulemaking efforts and the unanswered question of whether SB 358’s elimination of science-based numeric nutrient criteria is lawful, EPA has finally stepped in, disapproved fundamental sections of the new law, is holding the State of Montana accountable for its failure to adhere to the federal Clean Water Act, and is specifically recognizing SB 358 as an unlawful attempt to circumvent protective water quality standards. 

In addition to its Letter disapproving sections of SB 358, EPA issued a memorandum identifying the DEQ’s track record in applying narrative numeric criteria since 2020. That memorandum’s probing review showed that nearly every applicable pollution permit failed to include an adequate scientific basis for establishing pollution controls necessary to prevent local water quality degradation. EPA’s review indicates, as soon as it was possible, DEQ took its hands off the wheel and allowed weak, un-protective nutrient pollution limits in permits, despite abundant best available science demonstrating the need for better control of point source nutrient pollution.  

EPA’s action letter this week fixes these fundamentally unscientific and unlawful rollbacks to clean water protection in Montana. EPA’s disapproval letter provides timely, critical input from our nation’s regulatory backstop, reminding all stakeholders, much less the State, that protecting Montana’s unique water resources is a science-based affair, as well as forecasting how the State and DEQ should, or should not, proceed with nutrient rulemaking under SB 358.

Today, Montana’s nutrient water quality standards return to the proper status quo: numeric nutrient standards are the legally applicable criteria for pollution permitting, and always were despite the passage of SB 358 and DEQ comments otherwise. Similarly, SB 358’s attempt to create sweeping new categorical exemptions for nutrient dischargers through revisions to Montana’s nondegradation policy are formally disapproved and declared unlawful, a monumental victory for local water quality and healthy waterways. In short, EPA’s letter declares that numeric nutrient standards were unlawfully repealed, and narrative standards alone lack a scientific basis showing them capable of adequately protecting local water quality and cannot be used to justify pollution permit decisions.  

Moving forward, DEQ still has the ability to develop a scientific basis for the Adaptive Management Program (AMP) required by SB 358, with the caveat that any AMP must comply with the CWA and EPA rules, and provide transparent, enforceable, and accountable Best Management Practices that measurably reduce nonpoint source pollution in Montana’s waterways. As to the pending rulemaking for New Rule 2 under SB 358, to the extent that DEQ seeks to, again, eliminate numeric nutrient criteria and ignore best available science, it’s clear that EPA is likely to heavily scrutinize such a proposal and remains poised to disapprove continued efforts to avoid baseline requirements for setting – and implementing – protective water pollution control standards at law.