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EPA asked to rule on Montana’s change to nutrients standards

Montana has long prided itself on clean rivers and streams. But it is now struggling to implement standards to keep fertilizers and other nutrients from polluting its water sources.

HELENA, Mont. (CN) — After leading the nation in setting effective water standards for nitrogen and phosphorus, the state of Montana is being forced to backpedal due to state legislation. But since the federal government also has a say in water quality, Montana’s Department of Environmental Quality finds itself stuck in a power struggle.

This week, a group of Montana environmental organizations sent a letter to Montana Department of Environmental Quality asking the department to follow federal Clean Water Act requirements by officially informing the U.S. Environmental Protection Agency of changes to its policy regulating nutrients in state waters.

“Why are we asking for a formal submission? Because somewhere, something’s happening that’s disingenuous,” said Guy Alsentzer of Montana-based Upper Missouri River Waterkeeper, one of the groups that signed the letter.

Nutrients — chemical compounds of nitrogen and phosphorus and key ingredients in commercial fertilizers — are increasingly in the news as they pollute the nation’s waters, causing algae mats to invade river channels and choke aquatic environments of oxygen. From the Great Lakes and Chesapeake Bay to the Gulf of Mexico, water is increasingly degraded and sometimes toxic, affecting fish and people alike. In Florida waters, nutrient-fed algae are choking out native seagrass, causing hundreds of endangered manatees to die of starvation.

Last year, the deoxygenated “dead zone” in the Gulf of Mexico — caused by nutrient-laden waters from the Mississippi River — was bigger than it’s been in the past five years, covering more than 6,300 square miles, larger than the size of Lake Ontario and Lake Erie combined. Tributaries of the Mississippi River across 31 states contribute some level of nutrients to the Gulf, especially in the spring as farmers spread fertilizer on their fields.

The EPA has long recognized nutrients in water as a national problem. Nutrients do occur naturally, but human activities that add nutrients — municipal waste treatment, septic fields, agriculture, mining — are increasing. And climate change effects are only making matters worse.

More than two decades ago, the EPA sought to get ahead of the nutrient problem by encouraging states to exchange more vague narrative water quality standards for numerical standards. Numerical standards already set measurable concentration limits for most water pollutants, such as mercury or arsenic. Response can be quicker because states must take action if water samples exceed the set concentrations.

Many states haven’t complied, though in 2009 Montana became the first state to pass legislation to do so. A headwaters state, Montana has long prided itself on clear streams and blue-ribbon trout populations. But in the 1980s, Montanans grew increasing concerned about mats of algae spreading throughout some fishing streams.

Montana's environmental quality agency and university scientists spent several years developing regional numerical standards for state streams, and in 2014 the agency submitted its new rule to the EPA, which granted approval in 2016.

It should have been a small win for the Clean Water Act, the headwaters of Montana and points downstream. But it wasn’t that simple.

Montana’s larger polluters, those that require discharge permits, discovered the equipment needed to filter nutrients from their wastewater is quite expensive. At the time, the only real option for municipalities was reverse-osmosis, and depending on the size, equipment could cost $1 million to more than $25 million.

Mayors and town managers with tight city budgets pushed back. So the environmental quality agency created a variance program to give municipal polluters up to 20 years to achieve the permit limits required by numerical standards. During that time, polluters could raise money or wait for cheaper technology but didn’t have to reduce the amount of nutrients they expelled. The EPA consented to the variances until Upper Missouri River Waterkeeper took the feds to court for allowing economic considerations to override the Clean Water Act.

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“It’s not about stopping pollution at the source, it’s now about managing pollution in our waterways,” Alsentzer said. “And doing that solely on the rationale that it’s really expensive to control pollution. It’s not about technological feasibility. It’s we think the cost, economically, outweighs all the benefits of having clean water and healthy river systems.”

After Waterkeeper initially won in a Montana federal district court in 2019, polluters appealed and then sought other solutions. The result was state Senate Bill 358, passed in 2021. It required the environmental quality agency to immediately abandon numerical standards and to create draft narrative standard rule by March 2022, to be finalized by October in time for the 2023 legislative session.

After the bill passed in April 2021, the state agency created a working group of stakeholders — agriculture and mining industries, municipalities and environmental advocates including the letter-writers — to develop an acceptable narrative standard rule. But for the past year, the working group has struggled to agree on much of anything. So as the mandated March 1 deadline approached, the agency was only able to publish a rough framework for the rule with few details.

“At this point, it’s pretty clear that there are a lot of problems with the overall framework, and it doesn’t make a lot of sense to go through a whole rulemaking — all the time and resources — if ultimately the EPA finds that the statute doesn’t comply with the Clean Water Act,” said attorney Derf Johnson of the Montana Environmental Information Center, one of the environmental organizations.

On March 23, Montana's administrator of the water quality division Amy Steinmetz assured the working group the framework rule “was more of a placeholder” and said the goal was still to have a usable program by Oct. 1, “with minimal unintended consequences.”

In the meantime, Senate Bill 358 required the environmental quality department to enforce a narrative nutrient standard that it doesn’t have yet. This past summer, the agency tried to use narrative standards to issue a wastewater discharge permit to Montana’s capital city, but pulled it back after Waterkeeper informed the EPA. The EPA then told the state it must continue enforcing the old numeric standards rule until a new rule is approved. So, the agency put all discharge permits on hold. Meanwhile, excess nutrients could be rolling downstream.

“The DEQ is a creature of Montana statute. So if the Legislature directs them to operate under SB 358 and narrative standards, and the EPA finds that it isn’t in compliance with the Clean Water Act, the DEQ is boxed in,” Johnson said.

But the EPA hasn’t done much for the past year to remedy the situation.

On April 8, it did send a letter to Steinmetz highlighting several concerns about the proposed rule framework. The letter reinforced the environmental groups’ skepticism.

“Because MDEQ is removing numeric nutrient criteria that are scientifically sound and protective of designated uses, EPA expects an adequate level of assurance that MDEQ can identify protective levels of both (nitrogen and phosphorus) for implementation in (Clean Water Act) programs,” the EPA said in its letter.

Also in early April, the EPA issued a memo renewing its commitment to reducing nutrient pollution nationwide, calling nutrient pollution “one of America’s most widespread, costly, and challenging environmental problems.”

But according to the group that sent the letter to the state agency this week, the EPA itself has failed to follow the law.

The Clean Water Act requires states to notify the EPA of changes within 60 days of the change. Since SB 358 made a change a year ago by preventing the environmental quality department from using numerical standards, the environmental organizations claim the agency should have officially notified EPA then. They also question why the EPA — which knows the situation — hasn’t done its part to approve or disapprove the change within 90 days. Alsentzer thinks an ineffective narrative standard would prompt the EPA to overrule SB 358 and tell the environmental quality agency to resume using numeric criteria.

The EPA refused comment, citing ongoing litigation.

Requests for comment from the state agency were not returned by press time. But on Tuesday, it announced the working group would meet weekly instead of bimonthly during May as it tries to get consensus before finalizing the rule.

“There is no example across the entire nation where EPA has approved numeric nutrient criteria and then allowed a state to say, ‘This is politically or economically inconvenient; we’re no longer going to apply them,’” Alsentzer said. “We’re saying to the EPA, ‘You are participating in state’s rulemaking, so take action. Simply clarify what the rules of the road are. You are the regulatory backstop.’”

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