The new law makes Montana the first state that has approved numeric standards for nutrients to then repeal them, directing the Montana Department of Environmental Quality to adopt new narrative standards. Meanwhile, the state has put a temporary hold on three municipal water permits adapted to narrative standards after EPA raised concerns. The group Upper Missouri Waterkeeper challenged the variance process in federal court , arguing that the Clean Water Act did not allow for economic considerations and the variance did not mandate progress towards meeting minimum nutrient levels during the life of the variance.
In a U. District Court Judge ruled partially in their favor. Then last month the Ninth Circuit Court of Appeal overturned the district court, ruling that the variance did mandate permittees eventually meet minimum levels once the variance expires.
The latest ruling came months after the change in Montana law. Supporters of SB have cited extensive issues with the law they believe have made it untenable. DEQ, an agency under the Gianforte administration, initially opposed SB but later shifted to informational witnesses.
Upper Missouri Waterkeeper, which also has membership on the nutrient work group, opposed the bill. Executive Director Guy Alsentzer says there was good reason to adopt numeric standards in the first place because they are precise and scientifically defensible while characterizing narrative standards as ambiguous. Alsentzer has also gone a step further, accusing DEQ of acting in bad faith when officials publicly stated that SB is the controlling law and advanced waste water permits for Helena, Manhattan and Cut Bank using narrative criteria before those standards were finalized and approved.
More broadly and because a change from numeric to narrative standards has never occurred, the body of evidence establishing numeric standards as the best available science would be discounted — a suspect argument as a matter of law, he said.
Officials with DEQ denied that anything unusual occurred with the permits, saying that EPA frequently comments on permits but that the change in state law occurred late in the permitting process. To understand the idea of an adaptive management plan is to first understand where nutrient discharges are and are not regulated.
Non-point sources, which can account for the majority of nutrients in some waterways, are not currently regulated and include runoff from agriculture or residential areas. The dichotomy in enforcement creates a natural debate, as dischargers often say they bear the brunt of public focus and regulation but without an understanding of the whole picture and contribution from other sources of nutrients.
Under an adaptive management plan, a point-source discharger could partner or contract with a non-point source discharger to essentially offset the point-source. Such an arrangement takes a more holistic approach to a watershed, Steinmetz said, which will ultimately bode well for water quality. In October, EPA submitted a comment letter to DEQ raising a number of concerns with proposals working through the nutrient work group, including that proposed methodologies may be reactionary and not protect exceedance of the narrative criteria, falling short of Clean Water Act requirements.
EPA suggests as a possible solution that DEQ develop a translator that would essentially provide discharge limits necessary to stay below the narrative standards. The letter goes on to question the legality of a point-source contracting with a non-point source discharger, such as agricultural runoff, noting the legal limitations in regulating non-point source pollution. HUD Program. Laws, Authorities, and Regulations. Airport Hazards. Coastal Barrier Resources.
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