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Group intends to sue EPA over new Montana law

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Low-flowing Beaverhead River south of Dillon

A bend in the river before a fishing access point between Dillon and the Clark Canyon Reservoir off the I-15 Frontage Road on the Beaverhead River is filled with algae as the river runs low on Sept. 29, 2021, in southwest Montana.

An environmental group has filed a notice of their intent to sue the Environmental Protection Agency over state changes to Montana’s water quality standards, saying that federal regulators have missed statutory deadlines to grant or deny the changes.

Attorneys for Bozeman-based Upper Missouri Waterkeeper notified the EPA on Jan. 11 of its 60-day intention to sue. The case follows a petition filed by the group in May requesting the agency find a new Montana law dealing with certain water pollution standards violates the federal Clean Water Act.

Montana holds “primacy” over the federal law, meaning the Montana Department of Environmental Quality has authority delegated by the EPA to set pollution limits and issue discharge permits. The federal agency holds final approval over the state’s program under the agreement.

In 2015 the EPA approved Montana’s “numeric” water quality standards for nitrogen and phosphorus, known as “nutrients” because excess amounts may degrade water by causing excess plant, algae and bacteria growth. Numeric standards, as the name implies, set permitted discharge levels, and EPA has encouraged states to adopt them.

The numeric standards replaced “narrative” water quality standards in place at the time. Narratives typically describe desired conditions for a waterbody free from pollution and remain EPA accepted standards in some states for nutrients and some other pollutants in Montana.

Montana’s shift to numeric came with a 20-year variance for permittees, such as municipal water or industry, to meet them. The variance anticipated advancements in technology and declining costs to allow dischargers to meet those standards over time.

In 2019 a federal judge found the variance did not fully comply with the Clean Water Act as it did not dictate progress towards eventually meeting the standards. That ruling was overturned last year by a federal appeals court, but not before the Montana Legislature changed the state’s law.

Lawmakers passed and Gov. Greg Gianforte signed Senate Bill 358 last year. The law repeals numeric water quality standards in favor of a return to narrative standards. The bill also sets up a process for permitted dischargers called “point-source” to partner with nonpermitted dischargers called “nonpoint source” to offset or reduce total discharges into waterways.

SB 358 was supported by permittees who have said the numeric standards cannot be met in some cases or are cost-prohibitive with only marginal increases to water quality.

DEQ has worked with the state’s Nutrient Work Group to advance a draft rule package for new narrative standards. Both the EPA and Upper Missouri Waterkeeper hold membership in the workgroup, although both have raised concerns about compliance with federal law. EPA holds authority to approve or deny the changes.

The intent to sue filing cites timing provisions in the federal law, specifically that the EPA would have 60 days to either approve or deny changes made by the state of Montana. The state law included an immediate effective date when signed last April, and DEQ advanced municipal water permits using narrative criteria before placing them on hold, the filing notes.

“This notice is about holding EPA accountable for the administration of the Clean Water Act when states, like Montana, go it alone in an attempt to appease polluting special interests. It’s contrary to both the law and well-established, science-based best practices that protect our waterways from degradation,” Guy Alsentzer, executive director of Upper Missouri Waterkeeper, said in a statement.

A spokesperson for Upper Missouri Waterkeeper said the EPA has not responded to the group’s petition from last May.

A spokesperson for the EPA declined to comment, citing the litigation.

State environmental regulators at DEQ told the Montana State News Bureau in November that they are confident water quality will be maintained under a revised system.

SB 358 requires the state agency to adopt final narrative standards this March, although DEQ believes only a final framework for rules will be finalized by that date. The nutrient work group is scheduled to meet several times in the coming weeks ahead of that deadline.

Tom Kuglin is the deputy editor for the Lee Newspapers State Bureau. His coverage focuses on outdoors, recreation and natural resources.

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State Reporter

Tom Kuglin is the deputy editor for the Lee Newspapers State Bureau. His coverage focuses on outdoors, recreation and natural resources.

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