A pair of environmental groups and the Confederated Salish and Kootenai Tribes are challenging the federal government’s approval of a measure Montana lawmakers passed last year that loosens water quality standards.
In a lawsuit filed in federal district court in Great Falls, Upper Missouri Waterkeeper, Flathead Lakers and CSKT contend that the U.S. Environmental Protection Agency’s (EPA) decision to approve House Bill (HB) 664 is “inconsistent with” the Clean Water Act. The complaint also argues that the EPA failed to adequately consult with the U.S. Fish and Wildlife Service to assess the measure’s impact on aquatic species protected under the Endangered Species Act, such as bull trout, which are similar to Arctic grayling in that they’re imperiled by nutrient pollution and warming river temperatures.
House Bill 664 repeals numeric nutrient standards, giving wastewater treatment plants and industries that discharge nitrogen- and phosphorus-laden wastewater into Montana rivers more latitude to comply with Montana Department of Environmental Quality (DEQ) administered regulations.
Nitrogen contributes to noxious algal blooms, which can damage aquatic ecosystems by depriving fish and other aquatic life of the oxygen they need to thrive. About one-third of the state’s rivers (as measured by river miles) are designated as impaired due to nutrient pollution.
In his decision authorizing the state’s adoption of HB 664 (a review required by the Clean Water Act), Region 8 EPA Administrator Cyrus Western noted that DEQ used narrative standards, which are based on subjective criteria such as color, odor and the presence of undesirable aquatic life, as recently as 2014. He argued that the Clean Water Act does not require states to adopt numeric, or numbers-based, nutrient criteria and concluded that the EPA’s authorization of narrative standards will “support Montana in its work to implement the Clean Water Act and protect state waters.”
But in an afternoon press release about the lawsuit, Upper Missouri argues that the revised narrative standard is “vague” and “unenforceable.” The Bozeman-based group also argues that there is no precedent under the Clean Water Act for a state to adopt a science-based numeric nutrient standard only to reverse course “due to political pressure from polluting industries.”
“EPA doesn’t get to rubber-stamp the State of Montana’s illegal water quality rollbacks for polluters and pretend there is no risk,” Guy Alsentzer, Upper Missouri’s executive director, wrote in the release. “The law requires agencies to understand how gutting water pollution control standards would impact the state’s clean water resources, including threatened and endangered species, before making a decision. EPA didn’t do their homework before hastily approving the state government’s giveaway to polluters allowing more pollution into our waterways, which will have many deleterious consequences for Montanans.”
HB 664 mirrors a 2021 proposal to replace numeric standards with narrative standards that encountered substantial federal—and subsequent state— headwinds under the Biden administration despite garnering approval from the Montana Legislature and Montana Gov. Greg Gianforte (R).
The tug-of-war over water quality standards that can garner the approval of environmental and industrial stakeholders without coming afoul of state and federal regulators has proven a very difficult nut to crack.
The Sibanye-Stillwater Mine in southcentral Montana, one of the first wastewater discharge permit holders to receive a revised permit under HB 664, told Montana Free Press (MTFP) in an afternoon phone call that the new nutrient standard the mine is operating under “doesn’t work” because it’s too strict relative to what the company can achieve with available technology. Heather McDowell, the company’s vice president of legal and external affairs, also argued that there’s very little difference between the nitrogen limits the mine is beholden to under HB 664 as compared to when the numeric standards were in place.
It’s “essentially the same” standard for the mine, given how the math has worked out for the mine’s permit, McDowell said.
Sibanye-Stillwater agrees with the plaintiffs in the lawsuit that “the regulation doesn’t make sense in practice, but for essentially the opposite reason,” McDowell said, arguing that years of legislative changes, implementation overhauls and lawsuits have created a “Franken-regulation” that fails to meet anyone’s objectives.
“The one thing most everyone in Montana can agree on is nutrient regulation has been a disaster,” McDowell said. — Amanda Eggert, MTFP environmental reporter
