By Derf Johnson
Our rivers don’t stop at the state line. The water cycle is an intricately connected, complex system that all life is tethered to and dependent upon, one way or another. Water pollution in Montana will have consequences for more than just the environment and citizens of Montana. Further, in our modern, hyper-industrialized and highly populated society, we generate an enormous amount of toxins and pollutants, much of which ends up in our waterways. This pollution must be prevented in order to avoid impacting our health, that of our neighbors, and the environment.
Recognizing this quandary, the U.S. Congress passed the Clean Water Act (CWA) in 1972. While the CWA allows for the federal government to delegate its authority to states, it also sets national standards that all states must meet so that pollution can be controlled and prevented. This means that a state, such as Montana, can administer the CWA regulation and enforcement program, but must do so in a way that meets the national standards. The U.S. Environmental Protection Agency (EPA) is also charged with approving (or denying) virtually all water quality regulations and permits that are proposed to carry out the CWA.
This specific authority and responsibility of the EPA may have saved our bacon in regard to nutrient pollution and SB 358. We have written extensively about SB 358, a bill that passed in the 2021 Legislative Session which moved Montana from numeric standards for regulating nutrient pollution to a far more subjective, narrative-based standard. From its inception, MEIC raised concerns about a reversion back to narrative nutrient standards and its ability to protect Montana’s water quality in conformance with federal law. These concerns went unheeded.
On May 10, EPA finally notified the Montana Department of Environmental Quality (DEQ) that it was denying major aspects of the legislation as not being protective of “beneficial uses” of water quality. Beneficial uses include activities such as fishing, swimming, and drinking. This step is significant, as the EPA has now made clear that, for the time being, numeric nutrient standards are the law of the land. It also puts DEQ on notice that the agency risks its “primacy” if it continues down the path of an unlawful narrative standard. Primacy is the ability for DEQ to administer the CWA. Should the state lose its primacy, all or parts of the clean water protection program would be transferred to and administered by the Region 8 Office of EPA in Denver.
However, EPA’s directive does not resolve the dispute over whether narrative standards are appropriate or legal for regulating nutrients in Montana. This is because the EPA did not prevent the state from continuing to develop narrative regulations for a later submittal, along with further justification that the standards would be protective of water quality. For now, numeric standards remain in place, but DEQ plans to continue the rulemaking process for certain portions of SB 358, including development of an adaptive management program, the eventual repeal of numeric standards, and the details for implementing the narrative standards.
MEIC and our partners will continue to be involved in this process and will be dogged in making sure that Montana’s water quality is protected. We will let our members and supporters know if and when there are relevant public comment periods or meetings, and ask that you show up in support of strong regulations that protect and enhance the fishable, swimmable, and drinkable water quality across our great state.
This article was published in the June 2022 issue of Down To Earth.
