EPA clears Montana’s environmental regulator to loosen water quality standards

A multi-year battle over environmental regulations reached another milestone earlier this month as the U.S. Environmental Protection Agency allowed its Montana counterpart to loosen water quality regulations.

EPA’s regional administrator issued a letter to the Montana Department of Environmental Quality on Oct. 3 keeping “narrative” nutrient standards on the books over the objection of environmental groups wary of degraded rivers and lakes. 

In his letter to DEQ, Region Eight Administrator Cyrus Western wrote that the standards “meet requirements to protect designated uses” under the Clean Water Act, the 53-year-old law U.S. Congress passed to clean up polluted rivers and lakes.

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.”

Standards for nitrogen and phosphorus, common waterborne nutrients that can negatively impact aquatic ecosystems, are an ongoing source of consternation for lawmakers, government regulators, judges, environmental nonprofits and industry groups reliant on state-issued wastewater permits, such as mines and refineries. The various stakeholders have for years haggled over the right balance between environmental protection and affordable, achievable wastewater treatment standards.

Conservation groups generally favor stricter, more protective standards while mining companies, fossil fuel refineries and other industrial operations with wastewater discharge permits generally favor looser regulations.

DEQ thanked Western for the decision in an Oct. 6 statement, writing that the new law will provide “regulatory predictability for permittees” and give the agency the ability to use “the best available science to protect water sources based on the agency’s understanding of local, site-specific conditions.”

“Thanks to this approval, and the bipartisan legislation signed into law by Governor Gianforte, DEQ will now move forward with water quality permitting and planning for permittees while also protecting our treasured water resources,” DEQ Director Sonja Nowakowski wrote in the release.

Upper Missouri Waterkeeper Executive Director Guy Alsentzer countered that the federal government is favoring polluters and developers over “clean water, public health and Montana’s outdoor heritage.”

“Thanks to this approval, and the bipartisan legislation signed into law by Governor Gianforte, DEQ will now move forward with water quality permitting and planning for permittees while also protecting our treasured water resources.”

DEQ Director Sonja Nowakowski

“There is no scientific or legal basis for abandoning numeric nutrient standards that prevent nutrient pollution in our rivers and streams,” Alsentzer wrote in an Oct. 8 press release. “The State of Montana and Governor Gianforte are throwing away the measuring stick used to determine when water quality is being degraded and what’s necessary to protect clean water, which further undermines polluter accountability and enforcement.”

In a Tuesday afternoon conversation with MTFP, Kelly Ann Lynch, the Montana League of Cities and Towns’ executive director, said her members are eager for more detail on how DEQ will administer water quality permits in the absence of numeric criteria. The association represents the interests of public wastewater treatment plants, which have a significant financial stake in the matter.

“That’s the big question: What’s that going to look like?” Lynch said. “We want to make sure that the cities and towns can work together on that instead of each city and town having to defend their own [wastewater discharge] permit.”

Like other stakeholders, the League of Cities and Towns has been engaged in the regulatory scrum over water quality standards for years.

In 2022, at the request of Upper Missouri Waterkeeper, EPA rebuffed lawmakers’ 2021 attempt to revert to narrative water quality standards. The EPA, which was led by Democratic President Joe Biden at the time, determined that the looser framework was inconsistent with the Clean Water Act. Using its federal oversight authority, the EPA directed DEQ to keep numeric standards in place.

In a 2020 report to its federal counterpart, the Montana Department of Environmental Quality found that 35% of evaluated river miles in Montana were impaired by nutrients. 

DEQ responded by going into a multi-year holding pattern. This agency told state lawmakers this winter that during that period, it “drastically reduced [its] permitting output,” a situation it described as “unsustainable.” Instead, it allowed some of its permittees to use whatever standards they had been operating under, even if their permit had expired. It also convened a nutrient standard working group, which dissolved last year without resolution after the group failed to reach consensus on a path forward for narrative-based standards.

Rep. Bill Mercer, a Republican lawmaker from Billings who was recently tapped by Republican President Donald Trump to take a seat on the federal bench, sponsored House Bill 664. It cleared the Legislature with 103 lawmakers in support and 46 lawmakers opposed.

In April, DEQ relied on the Legislature’s passage of HB 664 to deny a request by Upper Missouri Water Keeper and the Big Hole River Foundation (which has since combined with the Save Wild Trout organization) to designate the Big Hole River as nutrient impaired. The nonprofits were critical of DEQ’s decision, arguing that putting the river on a “pollution diet” would unlock critical funding sources for river restoration and put the blue-ribbon fishery on track to a healthier future.

Upper Missouri Waterkeeper hinted a legal challenge to the EPA’s authorization of HB 664 may be in the works.

“Waterkeeper is reviewing EPA’s decision and is prepared to take necessary actions to defend Montana’s vital clean water resources against unscientific decision-making that’s both contrary to federal law and will risk the future health of our valued waterways,” the organization wrote in its release.

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