The state’s new law makes unprecedented changes to state water quality regulations, a concern for federal officials and clean water advocates. However, state environmental regulators say they are confident that water quality will be protected under the new system.
The state of Montana is “at the forefront” of the federal Clean Water Act, which means that the Environmental Protection Agency has the authority to set pollution limits and issue permits. The federal agency finalizes the state program under the agreement.
State legislation uses different standards depending on the type of pollution in order to fulfill its obligations. “Quantitative” standards govern the measurable level of pollution, while “historical” standards define the desired condition of a non-polluted reservoir. The EPA has adopted standard and quantitative standards from the state of Montana, depending on the type of pollution being regulated.
The 2011 state law made Montana the first state to adopt quantitative standards for nitrogen and phosphorus, which it called “nutrients,” and repealed the then-existing narrative standards, a process that was finally approved by the EPA in 2016. Quantitative nutritional standards have been implemented in more than 20 states, including Montana.
The law, which has been urging the EPA to introduce quantitative nutritional standards in countries for many years, has been recognized as at least partially pending because the technology to meet these standards has not been developed or is costly. Legislation includes a general difference of 20 years for the issuance of permits that meet these standards.
Reverse osmosis is the only technology that can meet quantitative standards for nutrient emissions, government officials say, but affordability remains the focus of municipalities. The 2020 DEQ report found that 35% of Montana’s river miles and 22% of the lake’s acreage were degraded by nutrients.
Over the next few years, the discrepancy became the subject of litigation, and it became increasingly rumored that the law could not be enforced on sewers such as industrial and municipal wastewater, and that the adoption was a mistake in good faith.
In response, the Montana Legislature passed Senate Bill 358 in 2021, signed by Governor Greg Gianfort. The new law makes Montana the first state to adopt quantitative nutritional standards, then repeals them, and introduces a new article standard to the Montana Department of Environmental Quality. The agency has been working with the state nutrition working group over the past few months to advance the ambitious package of rules.
But a return to the Montana narrative standard is a more complex process than the adoption of state laws and agency regulations. The EPA, which is part of the Nutrition Working Group, must first finalize Montana’s new standards. Until then, the EPA maintains a numerically accepted standard in Montana during public meetings and in letters.
At the same time, water permits in three cities in the state have been suspended in compliance with the standard after the EPA raised concerns.
The EPA declined to comment on the story.
Montana’s nutrient management history
The Upper Missouri Waterkeeper group has challenged the litigation process in federal courts, arguing that the Clean Water Act does not allow for economic considerations and that the difference does not require progress in ensuring minimum nutrient levels during fluctuations. In 2019, a U.S. district court judge ruled in their favor.
Then last month, the Ninth Circuit Court of Appeals overturned the district court and ruled that the minimum level of mandate approval had been reached after the violation expired. The latest decision comes months after Montana changed the law.
Proponents of SB 358 cite a wide range of issues related to the 2011 law, arguing that it is impossible to implement it.
“It simply came to our notice then. The system we have is not working, “said Senator John Esp, who supported his bill during the R-Big Timber Legislature.
The bill was supported by approved drainage agencies, including the Montana Cities and Village League, the Montana State Mining Association, and the State Resource Association. The DEQ agency, which is part of the Gianforte administration, initially opposed SB 358, but later turned to information witnesses.
The Upper Missouri Water Defender, who is a member of the Nutrition Working Group, has opposed the bill. CEO Guy Alsencer said there was good reason to approve the numerical standard in the first place because it could be protected from an exact and scientific point of view, but the narrative standard was defined as ambiguous.
Implementation of the Senate Bill 358
The Upper Missouri Waterman was critical of the implementation of SB 358 and was the first to raise the issue of conflict between state and federal law. The Freshwater Impact Group approached the EPA in May to oppose the state’s attempt to implement federal federal standards.
Alsencer also took the SB 358 one step further, claiming that the DEQ had acted maliciously when officials publicly declared it an advanced sewer permit for Helena, Manhattan, and Kut banks, and a control law before these standards were finally approved.
He said in a statement: “It is disappointing that the state of Montana has gone to places where our natural resource agencies are not enforcing the law and protecting waterways, communities and fresh water properly.”
Alsentzer believes the EPA should repeal the law to bring it into line with the Clean Water Act. He believes that SB 358 violates the process of updating water quality standards because it has an immediate expiration date. More broadly, he said, there is no change from the numerical standard to the narrative standard, so the evidence that the digital standard is the best science is a questionable argument from the law.
Although the EPA did not respond directly to the request, the DEQ received a direct e-mail to the DEQ on August 10 from the Montana Bureau of Information and a quantitative discharge criterion from the Nutrition Working Group meeting on September 22. reported that permissions.
Tina Laidlau, the EPA’s regional nutrition coordinator, said in September, “The EPA has stated that the EPA’s position in Montana is that the quantitative criteria for nutrients … remain valid. The state of Montana is very unique and scientific compared to other states.” Reasonable criteria have been approved, “the minutes of the meeting reads.
This surprised some members of the Nutrition Working Group, and some argued that the district court’s decision would make the 2011 draft law irrevocable.
“Honestly, I have to say that I think that’s all the news for us who came by call. I haven’t seen anything from the EPA or the DEQ announcing to the public that digital standards and general differences remain,” said Kelly, a Montana-based village league official. Lynch said in a note.
The EPA requested additional time to review the three municipal permits, which were rejected on the grounds that the nutrient limit may change as the implementation of DEQ SB 358 is completed.
DEQ officials denied any abnormalities related to the permit, and the EPA regularly commented on the permit, but said changes to state law were made later during the permit process.
“Part of the reason we’re arguing is that these permits are for public scrutiny and commentary, and the EPA’s oversight is part of that, so there’s nothing secret about it, I think it was part of our routine. “It’s a process,” John Kenning, head of the DEQ’s Bureau of Water Protection, said in an interview.
Amy Steinmetz, administrator of DEQ’s Water Quality Division, acknowledged that the process has not changed, but said in an interview that SB 358 teaches how a government agency works, “State law tells us to use article standards.”
“Right now we have a draft Senate Act 358, which is unusual for us, and we need to comply with state law, and under a basic agreement with the EPA, we need to submit their standards. control, ”he said.
It remains unclear what will happen if the EPA eventually refuses to accept the Montana State Narrative Code as sufficient to meet the requirements of the Clean Water Act.
“I can’t predict that right now,” Steinmetz said. “If that happens, we will reunite and do our best in Montana.”
Alsencer said the federal agency has a number of options, including the removal of Montana’s presidency.
“In general, if the EPA does not legally enforce the state’s Clean Water Act, it can take a number of measures, including a ban on permits, delays in funding, disallowment of illegal standards, or repeal of the nuclear option.” “Some or all of that power,” he said.
Other issues of Senate Bill 358
Steinmetz said the DEQ worked hard with the EPA and eventually came up with a set of rules to be approved. He went on to say that allegations that the DEQ was retreating to protect the state’s water were unfounded.
The DEQ hopes to have a rule framework in March and advance the final summer package.
According to SB 358 DEQ, requiring more water control than allowed, allowing for site-specific arrangements, and creating an “adaptive management plan” will help to further reduce nutrient levels, Steinmetz said.
To understand the idea of an adaptive management plan, we first need to understand where nutrient excretion is and is not regulated. The permit applies to “point-source” drainage facilities, such as municipal sewage systems and mining. The non-point sources that make up the bulk of the nutrients in some waterways are currently unregulated and include runoff from agricultural and residential areas.
Chargers claim to carry the burden of public attention and regulation, but the ambiguity of implementation is a natural controversy because the contribution of other sources of nutrients is not fully understood.
“Our members are committed to clean water, and we’ve done more than anyone else to clean and protect surface water,” Lynch told a recent nutrition task force, noting that the city spends hundreds of millions of dollars to reduce nutrient emissions. .
Under an adaptive management plan, a point source charger may work with or contract with a non-point source charger to basically replenish the point source. Such regulation requires a more integrated approach to watershed, Steinmetz said, which will ultimately have a positive impact on water quality.
“Because we give streams a certain flexibility in how we deal with pollutants in the watershed, and we allow them to work with non-point source discharges … Our water in Montana makes the biggest contribution to nutrients. We will soon see that water quality improves without it. Therefore, the ultimate goal of improving water quality in Montana can be achieved through this process, ”he said.
EPA is concerned
In October, the EPA sent a number of letters of concern to the DEQ regarding the proposals being made through the Nutrition Working Group, suggesting that the proposed methodologies may be reactionary and do not exceed historical criteria and do not meet the requirements of the Clean Water Act. .
“This method has the potential to lead or generate travel that exceeds the criteria of the article, or it is not possible to control the emissions of pollutants (eg, total nitrogen and total phosphorus),” the letter said.
As a possible solution to the EPA, the DEQ suggests developing a translator that meets the charge limits required to keep the article below the standard. The letter goes on to point out the legal limitations governing pollution from non-point sources, such as agricultural runoff, and casts doubt on the legitimacy of concluding point point agreements.
In response to the letter, Steinmetz noted that permits may include sewer limits and parameters around runoff, such as limiting drainage in the summer to reduce algae growth. The development of quantitative criteria will help implement article standards, he said.
“The DEQ has made it clear that the science behind the numerical standard is solid, and we will use that science to implement the historical nutrient standard,” he said.
The agency will use nitrogen and phosphorus to assess the canal, Steinmetz said. He added that the proposed “response variable”, ie standards for the prevention of excess algae growth or other diseases aimed at prevention, will be set at the lower threshold.
Finally, Steinmetz disagrees with the agreement in the Adaptive Management Plan. The partnership includes point-of-sale permits for the financing and financing of non-point source pollution reduction projects rather than direct regulation.
“Under the new law, in the future, if properly designed, there will be many options on the table to achieve nutrient water quality standards; adaptive management, working with non-point sources, and water quality changes if necessary,” he said. “The impact of nutrients on our waterways is difficult to address, so the DEQ and stakeholders need as many options as possible.”