by Derf Johnson
Two bills being considered by the Montana legislature would allow polluters who cannot easily control their water pollution to obtain variances from water quality standards (aka, violate the standards). HB 625 (Rep. Bill Mercer, R-Billings) would eliminate numeric nutrient standards from Montana law. Nutrients are one of the leading causes of water quality impairment in Montana’s rivers, streams, and lakes. Because of the extensive impacts associated with nutrients, the U.S. Environmental Protection Agency (EPA) developed nutrient water quality criteria in cooperation with different states and tribal governments. Montana’s nutrient standards were adopted and approved in 2015 by the EPA. Montana is obligated to combat nutrient pollution through those standards, and any attempt to repeal the standards, such as HB 625, not only threatens our clean and pristine waters but is also not in conformity with the U.S. Clean Water Act. The bill passed the House on a 60 to 39 vote, and is awaiting a hearing in the Senate.
SB 48 (Sen. Tom Richmond (R-Billings), as introduced, would have fundamentally undermined State and federal water quality laws. The primary proponent of the bill, the Montana Department of Environmental Quality (DEQ), was willing to amend the bill to address many of the concerns of those, among them environmental and agricultural interests, fighting to protect water quality,. However, despite significant amendments, the bill still contains several serious flaws. First, variances from water quality standards violate the federal Clean Water Act. There are means other than variances of helping those who initially cannot comply with the law to come into compliance in a specified amount of time. SB 48 simply provides a less restrictive avenue to avoid compliance. Second, DEQ would not only write the rules that govern when a variance could be issued (and reissued, and reissued, ad infinitum), but DEQ would also have the final say on whether a variance or subsequent variance was issued. Currently the Board of Environmental Review has the final say over most DEQ rules and over challenges to DEQ decisions on permitting. This bill makes DEQ both the judge and jury on water quality variances with no oversight of an independent body, and no forum for the public to object to a captive agency’s decisions except going to court. The bill passed the Senate on a 43 to 7 vote, and is awaiting a hearing in the House. MEIC continues to oppose the bill in its current form.