A new state law has set in motion an unprecedented shift in state regulation of water quality, drawing concerns from federal officials and clean water advocates. But state environmental regulators say they are confident water quality will be protected under a revised system.
Montana holds “primacy” over the federal Clean Water Act, meaning it has authority delegated by the Environmental Protection Agency to set pollution limits and issue discharge permits. The federal agency holds final approval over the state’s program under the agreement.
State laws and regulations use different standards depending on the type of pollution to meet its obligation. “Numeric” standards regulate measurable levels of pollution while “narrative” standards typically describe the desired conditions of a waterbody free from pollution. The EPA has accepted both narrative and numeric standards from Montana, depending on the type of pollution being regulated.
A 2011 state law made Montana the first state to adopt numeric standards for nitrogen and phosphorus, called “nutrients,” and repeal narrative standards in place at the time — a process finalized in 2016 when EPA accepted those standards. Following Montana more than 20 states have implemented numeric nutrient standards.
The law, which came after years of urging from EPA encouraging states to adopt numeric nutrient standards, was recognized as at least partially anticipatory as technology to meet those standards was either undeveloped or cost-prohibitive. The legislation included a general variance providing 20 years for permittees to eventually meet those standards.
Reverse osmosis is the only technology that could potentially meet the numeric nutrient discharge standards, state officials have said, although affordability has remained a major concern among municipalities. A 2020 DEQ report identifies 35% of Montana's river miles and 22% of lake acres as impaired by nutrients.
In the years since, the variance has been the subject of litigation and dischargers such as industry and municipal wastewater have become increasingly vocal that the law is unworkable and its passage, while well-meaning, was a mistake.
In response, the 2021 Montana Legislature passed Senate Bill 358 and it was signed by Gov. Greg Gianforte. The new law makes Montana the first state that has approved numeric standards for nutrients to then repeal them, directing the Montana Department of Environmental Quality to adopt new narrative standards. The agency has spent the last several months working with the state’s Nutrient Work Group to advance a rule package under an ambitious deadline.
But Montana’s move back to narrative standards is a more complicated process than passage of a state law and agency rules. EPA, which is part of the nutrient work group, must first accept Montana’s new standards once they are finalized. Until then, the EPA has maintained during public meetings and through letters that Montana’s federally accepted numeric standards remain in place.
Meanwhile, the state has put a temporary hold on three municipal water permits adapted to narrative standards after EPA raised concerns.
The EPA declined an interview for this story.
Montana’s history of regulating nutrients
The group Upper Missouri Waterkeeper challenged the variance process in federal court, arguing that the Clean Water Act did not allow for economic considerations and the variance did not mandate progress towards meeting minimum nutrient levels during the life of the variance. In 2019 a U.S. District Court Judge ruled partially in their favor.
Then last month the Ninth Circuit Court of Appeal overturned the district court, ruling that the variance did mandate permittees eventually meet minimum levels once the variance expires. The latest ruling came months after the change in Montana law.
Supporters of SB 358 have cited extensive issues with the 2011 law they believe have made it untenable.
“It’s something we have to do. The system we have does not work,” Sen. John Esp, R-Big Timber, said in support of his bill during the Legislature.
The bill saw backing from permitted dischargers, including the Montana League of Cities and Towns, the Montana Mining Association and Treasure State Resources Association. DEQ, an agency under the Gianforte administration, initially opposed SB 358 but later shifted to informational witnesses.
Upper Missouri Waterkeeper, which also has membership on the nutrient work group, opposed the bill. Executive Director Guy Alsentzer says there was good reason to adopt numeric standards in the first place because they are precise and scientifically defensible while characterizing narrative standards as ambiguous.
Implementing Senate Bill 358
Upper Missouri Waterkeeper has been critical of the state’s process in implementing SB 358 and was the first to publicly raise issues of a potential conflict between state and federal law. The clean water advocacy group petitioned the EPA in May to disallow the state’s attempted move and to implement federal numeric standards.
Alsentzer has also gone a step further, accusing DEQ of acting in bad faith when officials publicly stated that SB 358 is the controlling law and advanced waste water permits for Helena, Manhattan and Cut Bank using narrative criteria before those standards were finalized and approved.
“It’s disheartening that Montana has gotten to a place where our natural resource agencies are failing to apply the law and adequately protect our waterways, communities, and clean water," he said in a statement.
Alsentzer believes EPA should render the law void for purposes of meeting the Clean Water Act. Because SB 358 has an immediate effective date, he believes it violates the act’s process for revising water quality standards. More broadly and because a change from numeric to narrative standards has never occurred, the body of evidence establishing numeric standards as the best available science would be discounted — a suspect argument as a matter of law, he said.
While the EPA has not responded directly to the petition, it has advised DEQ both directly in an Aug. 10 email to DEQ provided to the Montana State News Bureau and during the Sept. 22 nutrient working group meeting that numeric criteria remain in effect for discharge permits.
Tina Laidlaw, EPA’s regional nutrient coordinator said in September that “EPA is on record stating that in Montana, EPA’s position is that the numeric nutrient criteria … remain in effect. Montana is very unique compared to other states in that there are defensible scientific criteria that are approved,” according to a transcript of the meeting.
That came as a surprise to at least some members of the nutrient work group, some of which believed the district court’s decision would have triggered a nonseverability clause in the 2011 bill.
“Honestly, I have to say I think this is all news to those of us here on the call. I have seen nothing from EPA or DEQ stating publicly their position that the numeric standards and general variances are still in place,” Kelly Lynch with the Montana League of Cities and Towns is quoted as saying in the minutes.
EPA requested additional time to review the three municipal discharge permits and DEQ withdrew them, saying the nutrient limits may change as it completes SB 358’s implementation.
Officials with DEQ denied that anything unusual occurred with the permits, saying that EPA frequently comments on permits but that the change in state law occurred late in the permitting process.
“I think part of the reason we would dispute that is that these permits did go out for public review and comment and the EPA review is a piece of that, so there was nothing underhanded with this at all, it was just part of our normal process,” John Kenning, DEQ’s Water Protection Bureau chief, said in an interview.
Amy Steinmetz, DEQ’s Water Quality Division administrator, agreed that the process had not changed but also said in an interview that SB 358 dictates how the state agency must proceed, saying “state law tells us we have to use narrative standards.”
“This is an unusual circumstance for us to be in right now where we have Senate Bill 358, state law, and we’re required to follow state law, and because of our primacy agreement with EPA we have requirements for submittal for standards for their review and approval, and they review our permits,” she said.
What remains unknown is what would occur if EPA ultimately declines to accept Montana’s narrative rule package as sufficient to meet requirements of the Clean Water Act.
“I can’t speculate on that at this point,” Steinmetz said. “If that were to happen, we would regroup and do whatever is best for the state of Montana.”
Alsentzer said the federal agency would have a number of options up to removing Montana’s primacy authority.
“Speaking generally, EPA can take a number of actions in response to a state failing to lawfully implement the Clean Water Act ranging from case-by-case permit vetoes, withholding funding, disapproving unlawful standards or purported revisions, or a nuclear option of revoking in part or all of a state’s delegated CWA authority,” he said.
Other aspects of Senate Bill 358
Steinmetz said DEQ has been working hard with EPA to come up with a rule package that will ultimately be approved. She further maintains that suggestions that DEQ is backsliding on protecting the state’s waters are unfounded.
DEQ expects to have a rules framework in March and advance the final package over the summer.
Under SB 358 DEQ will require more water monitoring than currently occurring for permitting, allow more site-specific regulation and create “adaptive management plans” that Steinmetz says could help drive down nutrient levels even further.
To understand the idea of an adaptive management plan is to first understand where nutrient discharges are and are not regulated. Permits apply to “point-source” discharges, such as municipal waste water systems and mining. Non-point sources, which can account for the majority of nutrients in some waterways, are not currently regulated and include runoff from agriculture or residential areas.
The dichotomy in enforcement creates a natural debate, as dischargers often say they bear the brunt of public focus and regulation but without an understanding of the whole picture and contribution from other sources of nutrients.
"Our members are committed to clean water, we have done more to clean and protect our surface waters than anyone else," Lynch said at a recent nutrient work group, pointing to the hundreds of millions of dollars spent by municipalities to bring nutrient discharges down.
Under an adaptive management plan, a point-source discharger could partner or contract with a non-point source discharger to essentially offset the point-source. Such an arrangement takes a more holistic approach to a watershed, Steinmetz said, which will ultimately bode well for water quality.
“Because we’re allowing some flexibility for dischargers in how they’re addressing pollutants in the watershed and allowing them to work with non-point source dischargers ... is the largest contributor of nutrients to our waters in Montana, it actually can allow us to see water quality improvements faster than we would without this. So the end goal to see increased water quality in Montana can be realized through this process,” she said.
EPA raises concerns
In October, EPA submitted a comment letter to DEQ raising a number of concerns with proposals working through the nutrient work group, including that proposed methodologies may be reactionary and not protect exceedance of the narrative criteria, falling short of Clean Water Act requirements.
“This approach also fails to control the discharge of pollutants (i.e., total nitrogen and total phosphorus) that will cause, have the reasonable potential to cause, or contribute to an excursion above the narrative criteria," the letter states.
EPA suggests as a possible solution that DEQ develop a translator that would essentially provide discharge limits necessary to stay below the narrative standards. The letter goes on to question the legality of a point-source contracting with a non-point source discharger, such as agricultural runoff, noting the legal limitations in regulating non-point source pollution.
When asked to respond to concerns raised in the letter, Steinmetz noted that permits may include effluent limits and parameters around discharge, such as limiting discharges during the summer to mitigate algae growth. The work that went into developing numeric criteria will also inform implementation of narrative standards, she said.
“DEQ has been clear that the science behind the numeric standards is solid, and we will use that science in implementing the narrative nutrient standards,” she said.
The agency will use ranges of nitrogen and phosphorus when assessing waterways and determining whether they warrant listing on the state’s impaired water list, Steinmetz said. Proposed “response variables,” meaning the sorts of excess algae growth or other maladies the standards aim to prevent, will be set at lower thresholds, she added.
Finally, Steinmetz disagreed that the sorts of agreements contemplated in adaptive management plans would be considered regulation. The partnerships would include the point-source permittee proposing and ensuring funding is in place for projects that would reduce the non-point source pollution rather than direct regulation.
“Going forward under the new law, if crafted correctly, there will be more options on the table for nutrient water quality standards to be attained; adaptive management, partnerships with nonpoint sources, and water quality variances if needed,” she said. “Given the complexity of addressing nutrient impacts in our waterways, DEQ and stakeholders need as many options as can possibly be made available.”
Tom Kuglin is the deputy editor for the Lee Newspapers State Bureau. His coverage focuses on outdoors, recreation and natural resources.