Environmental group sues over new water quality law

Environmental nonprofit Upper Missouri Waterkeeper filed suit against the U.S. Environmental Protection Agency Thursday over its handling of a new Montana law that loosens nutrient pollution regulations in the state’s waterways.

At issue is Senate Bill 358, a measure passed by the 2021 Montana Legislature that directs the Montana Department of Environmental Quality to repeal numeric water quality standards for nutrients like nitrogen and phosphorus and convene a work group to draft replacement standards based on narrative criteria. That nutrient work group produced a preliminary set of replacement rules earlier this year and is expected to issue its final proposal this October, according to DEQ spokesperson Moira Davin.

Proponents of the measure, which Gov. Greg Gianforte signed into law last April, have argued that treating wastewater to the level established under numeric standards is cost-prohibitive. In committee meetings before Montana lawmakers last year, they also said better wastewater treatment technology expected when DEQ adopted numeric water quality standards in 2014 hasn’t become available.

Upper Missouri Waterkeeper argues that the numeric water quality standards are just the kind of science-based and enforceable nutrient regulations the EPA has been urging states to adopt for two decades. The environmental group has described Montana as leading the nation in “backsliding” on water quality protections as a result of SB 358, and asserts that waterways will be degraded by nutrient pollution that feeds noxious algal blooms and sucks oxygen from aquatic ecosystems. It also says that the technology to treat water to the state’s prior numeric standards might be expensive, but it exists, and argues that wastewater plants should be making progress toward treating water to those standards.

DEQ, the state environmental agency, oversees wastewater plant permits granted to Montana towns and cities. EPA, the federal environmental agency, has ultimate authority over water quality standards across the nation and is charged with ensuring that state agencies like DEQ comply with regulations laid out in the federal Clean Water Act.

A 2020 report found that 35% of Montana’s river miles and 22% of its lake acreage evaluated by DEQ are considered impaired by nutrient pollution, which can kill fish and produce elevated toxins and bacterial growth harmful to human health in severe cases.

The new lawsuit by Upper Missouri Waterkeeper argues that, under federal law, EPA should have taken action to formally approve or disapprove Montana’s water quality standard changes. Specifically, Waterkeeper says the Clean Water Act requires EPA to green-light or halt implementation of new state regulations like SB 358 within 90 days. In instances where the EPA decides to disapprove state changes to water quality rules, the Clean Water Act requires the EPA to “promptly” prepare a proposal for alternate water quality standards with the expectation that a final regulation would be promulgated no more than 90 days later.

Nearly a year after Gianforte signed SB 358 into law, the environmental group says, the EPA has failed to even take the preliminary step of determining whether the measure is consistent with federal water quality standards. As a result, it is asking the United States District Court in Great Falls to force the agency to “immediately approve or disapprove Montana’s revised water quality standards.”

“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,” Upper Missouri Waterkeeper Executive Director Guy Alsentzer said in a release. “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.”

Waterkeeper says the narrative standards have already gone into effect and points to DEQ’s actions around a City of Helena wastewater treatment permit as evidence. According to the complaint, although the agency has “paused” its review of an application the city submitted using the new narrative standards last summer, there are no effective numeric nutrient criteria standards currently in place, “allowing Helena to continue to discharge nutrients without a water quality-based effluent limit.”

In the filing, Waterkeeper said some correspondence between EPA and DEQ has occurred. Specifically, EPA sent a letter to DEQ in August raising concerns about the state’s shift to non-numeric criteria and offering recommendations for how narrative criteria could limit nutrient pollution.

SB 258 sponsor John Esp, R-Big Timber, said in an interview this week he’s disappointed the matter is now subject to litigation and said it could mean hundreds of thousands of Montanas could face higher water and sewer bills in order to pay for more expensive treatment technology.

“It’s got to be something we can afford,” he said. “If we keep adding tens of millions of dollars [for] cities to comply with regulations that are unattainable to begin with, that’s not fair to our citizens.”

He also said he thinks the lawsuit is premature.

“We haven’t even finished writing the rules to implement 358, so it’s kind of disappointing that Waterkeeper chooses to go to court instead of sitting down and working around the table with the rest of us,” Esp said.

Upper Missouri Waterkeeper is part of DEQ’s Nutrient Work Group, which also includes representation from municipalities, the EPA, the Montana Department of Natural Resources and Conservation and industry groups like the Montana Stockgrowers Association, the Montana Wood Products Association, the Montana Mining Association and the Montana Petroleum Association.

The environmental group says the EPA is failing to fulfill the “federal backstop” role assigned to it under the Clean Water Act and is instead allowing Montana to flout federal law as the state undermines the agency’s two-decade push to shift states to numeric water quality standards.

“What we’re talking about is a state law that blatantly goes against that and is based upon improper considerations, political whims and economics,” Alsentzer said in an interview. “EPA needs to do its job to say this is too much — you aren’t following the rules, you aren’t using science, and you’re not allowed to do it,” he said.

In an emailed statement to Montana Free Press, DEQ spokesperson Moira Davin said the agency is “continuing to work with the Nutrient Work Group, of which Upper Missouri Waterkeeper is a member,” and expects the group will issue its final rule package in October.

A spokesperson for the EPA said the agency does not comment on pending litigation. The agency faces a late-May deadline to respond to the lawsuit in court.